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THE 
CHEROKEE    INDIANS 

WITH    SPECIAL    REFERENCE    TO    THEIR 

RELATIONS    WITH    THE   UNITED 

STi^TES    GOVERNMENT 


BY 

THOMAS   VALENTINE   PARKER,  Ph.D. 


THE    GRAFTON    PRESS 

PUBLISHERS  NEW  YORK 


Copyright,  1907, 
By  the  GRAFTON  PRESS 


FOREWORD 

The  object  of  this  study  is  to  exhibit  the  principles  and 
policies  of  the  Federal  Government  in  its  treatment  of 
the  Cherokee  tribe  of  Indians.  The  Cherokees,  known 
as  one  of  the  "  five  civilized  tribes,"  are  probably  the 
most  intelligent  Indian  nation  and  the  one  farthest  ad- 
vanced in  civilization.  For  years  the  Cherokees  have 
been  at  least  nominally  Christians.  For  these  reasons 
the  Government's  treatment  of  them  is  peculiarly  in- 
structive as  it  is  unobscured  by  many  of  the  difficulties 
which  tend  to  befog  the  main  issue.  We  have  here  a 
tribe  with  a  government  similar  to  that  of  the  United 
States ;  with  its  newspapers,  with  its  schools,  churches, 
asylums ;  with  its  leaders  comparable  in  ability  with 
many  of  the  leading  men  of  the  United  States.  Where 
a  tribe  is  grossly  ignorant  and  degraded,  it  is  very  dif- 
ficult to  discover  the  Government's  principles,  or  inter- 
pret its  policy  in  its  dealings  with  them.  If  then  we 
would  be  enlightened  in  regard  to  the  white  man's 
treatment  of  the  red  man  we  could  scarcely  find  a  more 
illuminating  illustration  than  the  story  of  the  Chero- 
kees. 

The  United  States  has  endeavored  to  do  something 
for  the  education  and  civilization  of  the  Indian.  This 
should  be  taken  into  account  in  forming  judgments 
about  the  Government  in  its  relations  with  the  Indians. 
But  the  purpose  of  this  paper  is  to  consider  the  political 


vi  Foreword 

aspect  rather  than  the  educational,  and  whatever  atten- 
tion has  been  given  to  the  latter  has  been  purely 
incidental. 

In  his  selection  and  presentation  of  facts,  the  author 
has  used  his  privilege  of  giving  here  a  mere  result,  there 
a  detailed  account,  and  whatever  the  errors  of  judg- 
ment may  have  been,  the  controlling  purpose  has  been 
to  elaborate  where  principles  were  involved,  or  where 
such  elaboration  would  seem  to  elucidate  a  general 
principle. 


CONTENTS 


CHAPTER    I 

PAGE 

The  American   Indian — the   Colonists   and  the   Indian      .      .         i 

CHAPTER    II 

The  Cherokees — Their  origin — Their  country — Their  rela- 
tions to  Colonial  Governments 5 

CHAPTER    III 

Treaty  of  Hopewell — Treaty  of  Holston — Other  early  treat- 
ies— Upper  and  Lower  Cherokees — Project  of  removing 
west — Agreement  of  Federal  Government  with  Georgia — 
Impatience  of  Georgia — Efforts  of  Federal  Government 
to  remove  Cherokees — Georgia  legislation — Protests — 
Appeals  to  the  courts — Status  of  the  Indians — The 
Worcester  case — The  Supreme  Court  decision — Georgia's 
defiance  of  the  Supreme  Court 8 

CHAPTER    IV 

Jackson's  dilemma — The  decision — Treaty  with  Andrew  Ross — 
Treaty  and  Anti-Treaty  parties — Negotiations  with  these 
parties — The  Ridge  Treaty — Rejected  at  Red  Clay — The 
reconciliation  of  the  two  parties — A  treaty  concluded — 
Consternation  of  the  Ross  party — The  truth  about  the 
treaty — The  opposition  of  the  Indians — Treaty  ratified  by 
Senate — The  provisions  of  the  Treaty  of  New  Echota — 
Troops  in  Georgia — Commission  appointed — Oppressions 
of  Georgia — The  extent  and  value  of  Cherokee  territory 
— The  mission  of  Ross  west — Attitude  of  VanBuren 
— The  debate  in  Congress — Protests  from  the  country — 
Protests  of  Cherokees — The  removal  west 29 


viii  Contents 

CHAPTER   V 

PAOB 

Parties  among  the  Cherokees — Act  of  union — Claim  of  old 
settlers — Murder  of  the  Ridges  and  Boudinot — The  coun- 
cil in  July — Federal  interference — Accusations  against 
Ross — Poinsett  orders  a  new  constitution — Council  in  1840 
— Ross's  version  of  the  troubles — Attitude  of  Tyler 
— Political  violence — Board  of  inquiry — Polk's  recom- 
mendations— Meigs's  house — Murders — Murder  of  Starrs 
— Flight  of  Treaty  party — More  murders — Armed  men 
assemble  on  the  mountain — They  disperse — Conduct  of 
Arbuckle — Questions  arising  from  Treaty  of  New 
Echota — Civilization    among   the   Cherokees      ....       50 

CHAPTER    VI 

A  treaty  and  its  alternative — Treaty  of  1846 — Its  provisions 
— Peace  restored — The  charge  for  subsistence — Payments 
of  sums  due  the  Indians — Conflict  of  jurisdiction     .     .       71 

CHAPTER    VII 

Outbreak  of  Civil  War — Alliance  with  Confederacy — Loyal 
Cherokees — Their  sufferings — Confederate  treaty  abro- 
gated— Desertion  of  regiment  to  the  Union — An  estimate 
of  John  Ross — Treaty  of  1866 — Its  provisions — The 
Cherokee  outlet — The  Cherokee  strip — Railroads  in 
Indian  Territory — Dispute  with  Kansas  cattlemen — The 
Cherokee  Tobacco  case — ^Jurisdiction  of  Courts — Chero- 
kee freedmen — North  Carolina  Cherokees — Settlement 
of  dispute  with  Old  Settlers T9 

CHAPTER   VIII 

Decided  change  of  policy  toward  Indians — The  Curtis  Act 
and  other  acts — Negotiations  and  Agreements  with 
Dawes  Commission — The  agreement  of  1902 — Intruders 
— The  present  and  future  of  the  Cherokees     ....       99 

CHPATER    IX 
Concluding  remarks 108 


THE    CHEROKEE    INDIANS 


THE  CHEROKEE  INDIANS 


CHAPTER  I 

THE  AMERICAN  INDIAN 

THERE  is  fascination  in  a  study  of  the  American 
Indian.  Legend,  romance  and  mystery  cluster 
about  him.  But  there  is  more  than  this  fascination 
which,  however  interesting,  is  of  no  great  value,  for 
when  we  consider  the  Indian  in  his  relations  with  the 
white  man  we  have  before  us  a  subject  of  practical 
importance.  To-day  especially  is  the  history  of  the 
relations  between  the  red  man  and  the  Federal  Gov- 
ernment a  matter  worthy  of  serious  study  for  its  bear- 
ing upon  present  problems.  Wisely  or  unwisely,  for 
good  or  for  ill,  the  United  States  Government  has 
entered  into  the  closest  relation  with  alien  and,  so 
far  as  progress  in  civilization  is  concerned,  inferior 
peoples.  Few  can  expect — even  if  they  desire  it — a 
complete  reversal  of  recent  policies  and  an  absolute 
severing  of  the  bonds  binding  us  to  these  races.  The 
question,  now,  is  not  as  to  whether  we  shall  undertake 
these  responsibilities,  but  as  to  how  we  shall  conduct 
ourselves  in  regard  to  them.  It  is  not,  "  Shall  we 
act.?  "  That  has  been  settled.  But,  "  How  shall  we 
act?"  In  view  of  this,  how  important  become  the 
considerations  as  to  our  past  treatment  of  the  Indians, 
the  only  alien  people  within  our  borders !  What  has 
been  our  spirit  ?    What  our  blunders  ?    Have  there  been 


2  The  Cherokee  Indians 

crimes?  Have  we  been  kind,  just,  unselfish  or  have 
we  been  harsh,  arbitrary,  selfish?  Has  there  been  such 
a  readiness  to  correct  abuses,  to  reform  methods,  to 
adjust  difficulties,  that  now  at  the  end  of  a  century 
and  a  quarter  we  are  warranted  in  believing  that  there 
has  been  real  progress  made,  and  that  a  spirit  has  been 
engendered,  whether  by  the  encouragement  of  success 
or  the  criticism  of  failure,  that  would  forbid  us  in  our 
dealings  with  weaker  peoples  to  seek  the  promotion 
of  our  own  interests  first  instead  of  the  interests  of 
those  dependent  upon  our  magnanimity  for  advance- 
ment ? 

Generalizations  are  seldom  safe.  Men  have  endeav- 
ored to  characterize  the  Indian,  and  their  character- 
izations have  differed  widely.  There  is  the  Indian  of 
romance — half  savage,  but  noble  and  admirable. 
There  is  the  Indian  as  seen  by  the  pioneer  who  has 
told  us  that  the  only  good  Indian  is  a  dead  Indian. 
There  is  the  Indian  of  the  reservation — indolent  and 
dependent.  The  truth  is  that  the  American  Indian 
cannot  be  summed  up  in  such  a  way.  The  red  man 
of  1500  is  not  the  red  man  of  1900.  And  the  reser- 
vation Indian,  for  example,  is  different  from  the  grad- 
uate of  the  Carlisle  School.  The  Indian  whom  the 
early  explorers  found  on  the  western  continent  had 
the  virtues  and  vices  of  a  savage.  He  was  curious  and 
often  inclined  toward  friendship  with  the  white  men, 
whom  he  held  in  awe.  He  combined  the  simplicity  of 
a  child  with  the  fury  of  a  savage.  He  was  often 
swept  by  gusts  of  passion  too  terrible  to  be  witnessed, 
yet  imperturbable  beyond  all  other  men  under  the 
ordinary  excitements  and  accidents  of  life;  garrulous, 


The  Cherokee  Indians  S 

yet  impenetrable;  curious,  yet  himself  reserved;  su- 
perior to  death,  but  a  coward  in  battle  according  to 
the  standards  of  civilized  nations ;  capable  of  magnan- 
imous actions,  but  cunning,  false  and  cruel. ^  But  once 
acquainted  with  the  greed,  falseness  and  vices  of  Eu- 
ropeans, once  having  tasted  the  fire-water  which 
the  whites  readily  gave  or  exchanged,  a  great  portion 
of  the  Indian  peoples  rapidly  degenerated,  losing  their 
savage  virtues  and  combining  the  vices  of  civilized 
man  with  the  worst  traits  of  the  savage.  But  again, 
the  circumstances  and  environments  of  the  different 
tribes  have  been  so  varied  that  the  statement  just 
made  is  not  applicable  to  all.  At  present  the  Indians 
may  be  divided  into  three  classes:  those  who  have 
made  such  prosrress  in  civilization  that  they  may 
fairly  be  called  "  civilized  " ;  those,  who,  though  in  no 
real  sense  civilized,  have  made  sufficient  progress  in 
civilization  to  indicate  that  with  care  and  under  the 
proper  conditions  they  are  capable  of  considerable  ad- 
vancement ;  and  those  who  are  demoralized  and  seem 
to  have  little  capability  of  improvement. 

The  sort  of  people  that  the  early  explorers  and 
settlers  found  inhabiting  America  has  been  described. 
The  attitude  of  the  English  colonists  toward  them 
varied.  In  New  England  the  Puritans  were,  on  the 
whole,  just  in  their  treatment  of  the  Indians.  At 
the  beginning  of  King  Philip's  War  it  could  be  truly 
said  that  the  colonists  had  not  taken  a  foot  of  ground 
without  paying  for  it,  except  in  the  one  case  of  the 
Pequot  War.  Efforts  had  been  put  forth  to  convert 
the  Indians  to  Christianity  and  civilization.     Of  course 

1  "  The  Indian  Question,"  Walker,  p.  15. 


4  The  Cherokee  Indians 

in  all  communities  there  are  individuals  who  are  not 
restrained  by  the  sentiment  of  the  community  and  will 
commit  deeds  of  fraud  or  violence.  In  Pennsylvania 
exceptional  conditions,  and  the  kindness  of  Penn  and 
his  fellow  Quakers,  secured  the  colony  long  immunity 
from  the  horrors  of  savage  warfare.  Of  the  Virginia 
colonists  so  good  an  account  cannot  be  given.  Ban- 
croft says,^  "  The  rights  of  the  Indian  were  little 
respected  nor  did  the  English  disdain  to  appropriate 
by  conquest  the  soil,  the  cabins  and  the  granaries  of 
the  Appomattocks."  In  all  of  the  colonies,  through 
the  acts  of  unauthorized  Individuals  and  many  inev- 
itable misunderstandings  arising  from  the  difference 
in  race,  causes  for  quarrels  were  frequent.  As  the 
whites  increased  in  number  and  the  colonies  sought  to 
enlarge  their  borders,  the  Indian  question  became  more 
complex  and  more  difficult.  So  from  decade  to  decade 
the  problem  has  changed  so  that  to-day  the  Indian 
question  which  we  must  consider  and,  at  last  are  set- 
tling. Is  a  totally  different  one  from  that  which  per- 
plexed the  colonists  or  the  first  generation  after  the 
War  of  Independence. 

2  "  History  of  U,  S.,"  vol.  1,  p.  126. 


CHAPTER  II 

THE     CHEROKEES     AND     THE     COLONISTS 

OF  all  the  Indian  tribes  found  in  America  in  the 
early  days  probably  none  surpassed  the  Cherokees 
in  intelligence  or  in  prowess.  They  lived  in  the  Ap- 
palachian region  of  the  sOuth,  and  the  extent  and  value 
of  their  country  made  them  the  envy  of  the  white  man, 
while  its  beauty  casts  a  spell  of  romance  over  their 
whole  history. 

The  word  "  Cherokee  "  means  *^  upland  fields  "  and 
possibly  refers  to  their  country,  which  is  thus  described 
by  Bancroft :  ^  "  The  mountaineers  of  aboriginal 
America  were  the  Cherokees  who  occupied  the  valley 
of  the  Tennessee  River  as  far  west  as  the  Muscle 
Shoals  and  the  highlands  of  Carolina,  Georgia  and 
Alabama,  the  most  picturesque  and  salubrious  region 
east  of  the  Mississippi.  Their  homes  are  encircled 
by  blue  hills  rising  be^^ond  hills,  of  which  the  lofty 
peaks  would  kindle  with  the  early  light  and  the  over- 
shadowing night  envelop  the  valleys  like  a  mass  of 
clouds.  There  the  rocky  cliffs  rising  in  naked  gran- 
deur defy  the  lightning  and  mock  the  loudest  peals 
of  the  thunderstorm;  there  the  gentle  slopes  are  cov- 
ered with  magnolias  and  flowering  forest  trees,  deco- 
rated with  roving  climbers,  and  ring  with  the  perpetual 
note  of  the  whip-poor-will;  there  the  wholesome  water 
1  Bancroft's  History  of  U.  S.,  vol.  2,  p.  95. 


6  The  Cherokee  Indians 

gushes  profusely  from  the  earth  in  transparent 
springs;  snow-white  cascades  glitter  on  the  hillsides; 
and  the  rivers,  shallow,  but  pleasant  to  the  eye,  rush 
through  the  narrow  vales  which  the  abundant  straw- 
berry crimsons  and  the  coppices  of  rhododendron  and 
flaming  azalea  adorn.  .  .  .  The  fertile  soil  teems  with 
luxuriant  herbage  on  which  the  roebuck  fattens ;  the 
vivifying  breeze  is  laden  with  fragrance;  and  day- 
break is  ever  welcomed  by  the  shrill  cries  of  the  social 
night-hawk  and  the  liquid  carols  of  the  mocking- 
bird." Such  was  the  ancestral  inheritance  of  the 
Cherokee,  and  can  we  wonder  that  as  in  later  years  he 
saw  his  beautiful  land  in  its  noonday  glory  or  bathed 
in  the  living  fire  of  the  sunset,  he  determined  to  resist 
to  his  utmost  the  efforts  of  the  white  men  to  deprive 
him  of  it.f* 

Some  students  of  ethnology  have  thought  that  the 
Cherokees  were  descendants  of  the  mound-builders. 
Of  course  this  is  doubtful.  Our  knowledge  of  them 
is  confined  to  the  historic  period.  But  in  the  dawn 
of  American  history  we  find  them,  for  it  is  almost  cer- 
tain that  the  first  contact  of  the  Cherokees  with  the 
white  man  took  place  when  DeSoto  and  his  fellow- 
explorers  traversed  the  American  wilderness. 

Tradition  says  that  an  exploring  party  from  the 
Virginia  Colony,  in  the  course  of  their  journey,  met 
the  Cherokees  and  that  this  was  tlie  first  meeting  be- 
tween the  Cherokees  and  the  English  colonists.  How- 
ever that  may  be,  treaty  relations  began  in  1721 
when  Governor  Nicholson  of  South  Carolina,  prompted 
by  jealousy  of  French  encroachments,  entered  into  an 
agreement   with   the   Cherokees.      This   agreement   de- 


The  Cherokee  Indians  7 

fined  the  boundaries  and  undertook  to  begin  some  sys- 
tematic superintendence  of  Indian  affairs  by  the  col- 
onists. In  1730  North  Carolina  concluded  a  treaty 
with  the  Cherokees  in  which  the  sovereignty  of  the 
King  of  England  was  acknowledged  and  the  Indians 
agreed  to  trade  only  with  the  English.  There  was 
a  treaty  and  purchase  negotiated  by  South  Carolina 
in  1755 ;  a  treaty  of  alliance  with  North  Carolina 
followed  one  year  later.  A  subsequent  alliance  with 
the  French  brought  defeat  at  the  hands  of  the  English 
and  a  consequent  treaty  of  peace  in  1760  followed  by 
a  more  decisive  one  the  next  year.  The  Indians  were 
not  principally  to  blame  for  the  hostilities  of  this 
period,  as  they  were  treacherously  dealt  with  by  Gov- 
ernor Lyttleton.  In  1768  there  was  another  purchase- 
treaty  with  South  Carolina.  In  1770  there  was  a 
treaty  with  South  Carolina  settling  the  boundary;  in 
1772  there  was  a  treaty  of  purchase  with  Virginia,  and 
in  1773  a  similar  one  was  concluded  with  a  British  of- 
ficial. In  1777,  after  hostilities,  a  treaty  of  purchase 
was  concluded  with  South  Carolina.  Some  time  after 
this  Cherokee  territory  was  practically  confiscated  by 
North  Carolina.  In  1783  the  dispute  in  regard  to 
this  was  adjusted  by  a  treaty  which  was,  however, 
so  favorable  to  the  whites  that  the  Indians  were  far 
from  satisfied. 

Thus  may  be  summarized  the  relations  of  the  various 
Colonial  Governments  with  the  Cherokee  Indians,  and 
we  are  brought  down  to  the  War  of  Independence  and 
the  formation  of  the  Federal  Government. 


CHAPTER  III 

THE    CONFLICT   WITH   A   STATE 

IN  the  War  of  Independence  the  Cherokees  were 
allied  with  the  British.  Peace  was  not  concluded 
between  the  tribes  and  the  United  States  Government 
until  1785,  when  the  Treaty  of  Hopewell  ^  ended  the 
war.  Prisoners  were  exchanged,  peace  and  friendship 
were  pledged.  Article  nine  of  the  treaty  allowed  Con- 
gress to  pass  laws  regulating  trade  with  them  and  to 
manage  all  their  affairs  for  the  protection  and  comfort 
of  the  Indians.  They  were  to  be  allowed  to  send  a  dep- 
uty to  Congress.  No  whites  were  to  be  permitted 
to  settle  on  their  lands.  But  peace  was  not  really  se- 
cured by  the  Treaty  of  Hopewell.  There  was  mutual 
dissatisfaction  with  its  provisions,  and  Georgia  and 
North  Carolina  had  protested  it.  The  whites  objected 
because  they  thought  the  Cherokees  had  been  allowed 
too  much  territory,  and  the  Indians  protested  because 
of  the  encroachments  of  the  whites.  In  September, 
1788,  Congress  issued  a  proclamation  forbidding  un- 
warranted intrusion  upon  the  Indians'  territory,  but 
scant  respect  was  paid  to  it  by  the  offenders  whose 
actions  called  it  forth.  In  1789  Secretary  of  War 
Knox  characterized  these  encroachments  as  a  "  dis- 
graceful violation "  of  the  Treaty  of  Hopewell  by 
the   whites.^     Angered   by    the   failure   of   the   whites 

1  Cong.  Doc.  531,  No.  28,  p.  147;  U.  S.  Stat,  at  Large,  vol.  7, 
p.  18. 

2  Amer.  State  Papers,  Indian  Affairs,  vol.  1,  p.  53. 


The  Cherokee  Indians  9 

as  Individuals  to  respect  Cherokee  rights,  and  by  the 
failure  of  the  Government  to  protect  them  in  their 
rights,  the  Indians  kept  the  neighboring  settlements 
in  a  state  of  uncertainty  and  terror  by  sudden,  hostile 
incursions.  In  1791  a  second  attempt  was  made  to 
secure  a  permanent  peace  and  the  result  was  the 
Treaty  of  Holston.^  Between  the  signing  of  this 
treaty  and  that  of  Hopewell  the  Constitution  had  been 
adopted.  The  treaty  of  Holston  was  in  many  re- 
spects, however,  similar  to  its  predecessor — that  of 
Hopewell.  It  provided  for  an  exchange  of  prisoners 
and  for  permanent  boundary  lines.  The  United  States 
was  to  pay  an  annuity  of  $1000  for  the  extinguishing 
of  a  claim  to  territory  lying  beyond  a  certain  de- 
scribed hne.  In  1794  there  was  a  treaty  dealing  with 
the  stealing  of  horses,  but  which  also  reaffirmed  the 
Treaty  of  Holston.* 

All  this  time  the  greed  of  land  was  increasing  and 
the  attempts  to  induce  the  Cherokees  to  part  with 
their  lands  became  more  insistent.  A  series  of  treaties 
was  concluded,  all  with  the  same  end  in  view — the  ac- 
quiring of  Indian  lands.  In  1797  the  legislature  of 
Tennessee  sent  a  remonstrance  to  Congress  alleging 
that  the  treaties  of  the  United  States  with  the  Cher- 
okees were  subversive  of  State  and  individual  vested 
rights.  Agitation  followed  and  the  result  was  that  more 
land  was  wrung  from  the  reluctant  Indians  in  a  treaty 
signed  at  Tellico  in  1798.^.  This  treaty  only  brought 
more  trouble.  Cumberland  Mountain  was  to  be  the 
determining  point  in  running  a  part  of  the  boundary 

3  Con?.  Doc.  531,  No.  28,  p.  148. 

4  U.  S.  Stat,  at  Large,  vol.  7,  p.  39. 

5  U.  S.  Stat,  at  Large,  vol.  7,  p.  62. 


10  The  Cherokee  Indians 

according  to  the  treaty  of  1798.  But  the  surveyors 
mistook  a  mountain  to  the  east  for  Cumberland  Moun- 
tain. The  consequence  was  that  about  twenty-five 
hundred  acres  were  included  in  Indian  territory  which 
did  not  belong  there  and  on  this  land  there  was  an 
old  settlement  of  white  people,  who  suddenly  found 
themselves  in  the  Indian  country  and  proceeded  at 
once  to  make  known  their  objections  and  their  claims 
to  the  authorities  in  Washington.  However,  the  In- 
dians refused  to  relinquish  the  land.  Then,  too,  the 
surveying  to  mark  out  boundaries  that  was  required 
by  an  early  Cherokee  treaty  and  a  Creek  treaty 
of  1790  was  not  done  until  1798.^  Prior  to  this  a 
Colonel  Waiford  and  others  settled  upon  a  tract  in 
Georgia,  not  knowing  that  it  was  Cherokee  country. 
After  the  survey  of  1798  they  became  aware  of  their 
error;  but  there  they  were.  And  they  had  gone  to 
trouble  and  expense  in  making  improvements.  The  In- 
dians complained  of  their  unlawful  occupancy,  and 
the  Government,  though  inclined  to  be  lenient  with 
these  people  who  had  intruded  unwittingly,  was  com- 
pelled to  give  orders  to  evict  them.  The  agents,  how- 
ever, interceded  for  them  with  the  Indians  and  pleaded 
that  they  might  be  allowed  to  remain  until  they  had 
harvested  their  crops.  The  Indians  consented.  Accord- 
ing to  the  Cherokee  story,  which  there  seems  no  reason 
to  doubt,  this  delay  brought  another,  and  that  another, 
until  finally  the  Indians,  who  in  the  first  place  had 
been  unwilling  to  part  with  their  land,  were  harassed 
into  selling  it.^  A  treaty  was  agreed  to  in  1804.  The 
object  of  the  Government  in  seeking  the  treaty  was  to 
6  Cong.  Doc.  114,  No.  19,  p.  19. 


The  Cherokee  Indians  11 

obtain  a  cession  of  land  in  Tennessee,  Georgia  and  Ken- 
tucky; but  in  this  they  failed,  as  the  Indians  would 
part  only  with  WafFord's  settlement,  for  which  five 
thousand  dollars  was  to  be  paid  down  and  an  annuity 
of  one  thousand  dollars  was  to  be  given  in  addition.*^ 
This  treaty,  which,  like  its  predecessor,  was  signed  at 
Tellico,  was  mislaid  and  was  not  ratified  by  the  Sen- 
ate until  1824*,  but  the  Government  had  possession  of 
Wafford's  settlement  during  the  twenty  years.^  With 
a  desire  to  get  what  they  had  been  unable  to  obtain 
in  1804,  the  authorities  at  Washington  again  began 
negotiations  looking  toward  a  treaty.  The  outcome 
was  a  treaty  on  October  25,  1805,  and  two  others  on 
October  27,  1805.  All  ceded  land.  The  first  gave  a 
considerable  tract  in  Kentucky  and  Tennessee  west  of 
Tennessee  River  and  Cumberland  Mountain.^  In  it 
there  was  a  secret  article  concluded  with  Doublehead, 
a  chief,  by  which  an  attempt  was  made  to  bribe  him 
to  use  his  influence  for  the  furtherance  of  the  efforts 
of  the  white  man  for  a  cession.  More  land  was  ceded 
in  1806 — a  large  section  in  Tennessee  and  Alabama  ^^ 
and  in  the  same  year  there  was  another  treaty  granting 
a  small  cession.  In  this  treaty,  too,  there  was  a  secret 
article  providing  for  the  bribery  of  two  chiefs  with 
money  and  rifles. ^^  Land  was  sold  by  the  Cherokees 
to    South    Carolina    in    1816,    and    In    the    same    year 

7  U.  S.  Stat,  at  Large,  vol.  7,  p.  228. 

8  Cong.  Doc.  114,  No.  19,  p.  9. 

»  U.  S.  Stat,  at  Large,  vol.  7,  pp.  93  and  95. 

10  U.  S.  Stat,  at  Large,  vol,  7,  p.  101. 

11  The  secret  article  in  the  treaty  of  1805  was  not  submitted  to 
the  Senate,  but  was  recorded  in  the  War  Office  at  Washington. 
The  secret  article  in  the  Treaty  of  1807  was  sent  to  the  Senate. 
U.  S.  Stat,  at  Large,  vol.  7,  p.  103. 


1^  The  Cherokee  Indians 

two  treaties  of  the  same  date  were  concluded  with 
the  United  States,  as  usual  ceding  land.  The  story 
of  one  of  this  set  of  treaties  is  the  story  of  all. 
Whether  through  ignorance,  carelessness  or  greed, 
there  was  constant  intrusion  on  Indian  land.  The  tide 
of  migration  was  coming  from  the  north  and  east  and 
was  sweeping  toward  the  southwest.  Hence  the  en- 
deavor to  procure  treaties  of  settlement  and  cession. 

As  early  as  the  time  of  the  Treaty  of  Hopewell  a 
few  Indians  who  were  dissatisfied  with  the  provisions 
of  that  treaty,  left  the  Cherokee  country  and  went 
west.  But  in  1803  President  Jefferson  suggested  a 
removal  west  on  a  large  scale. 

An  appropriation  bill  to  enable  the  President  to  en- 
deavor to  persuade  eastern  tribes  to  migrate  was 
passed  by  the  Senate,  but  defeated  in  the  House.  The 
discussion  of  this  project  was  revived  by  the  complaints 
of  a  part  of  the  Cherokees  that  the  annuity  was  un- 
fairly divided.  There  was,  as  a  matter  of  fact,  a 
division  of  the  nation  into  Upper  and  Lower  Chero- 
kees. The  former  had  abandoned  the  hunt  and  were 
engaging  in  the  pursuits  of  civilized  man,  while  the 
Lower  Cherokees  still  preferred  their  old  life.  These 
latter  complained  because  of  a  scarcity  of  game  in 
their  country  and  were  quite  willing  to  undertake  the 
project  of  re-establishing  themselves  in  the  west.  A 
delegation  from  their  number  was  sent  out  into  the 
Arkansas  region,  upon  a  tour  of  inspection,  the  Gov- 
ernment at  Washington  bearing  the  expense  of  the 
expedition.  Their  report,  upon  returning,  was  favor- 
able to  the  scheme  of  removal.  In  1817  General  Jack- 
son was  sent  to  confer  with  the  Cherokees  in  regard 


Tah   Chee 

His  English  name  was  "  Dutch."  His  parents  were  among 
the  earliest  emigrants  to  the  West,  going  there  about  1795. 
Reproduced  from  a  lithograph  in  colors  published  about  1840. 


The  Cherokee  Indians  13 

to  a  plan  by  which  the  title  to  their  land  might  be 
extinguished.       He    failed    completely    in    negotiating 
such  an  arrangement,  as  did  Governor  McMinn,  who 
attempted  it  after  Jackson's  failure.     So  the  Govern- 
ment was   forced  to   content  itself  with  treating  with 
the  Lower  Cherokees,   and  on  July  8,  1817,  a  treaty 
was  made  with  them,^^  by  the  terms  of  which  they  were 
to  exchange  their  lands  in  the  east  for  lands  west  of 
the  Mississippi.   By  article  eight,  six  hundred  and  forty 
acres   were   granted  to   each  head  of  an  Indian   fam- 
ily who  should  choose  to  remain  east  of  the  Mississippi 
on   land   ceded   with   a  reversion   in   fee   simple   to   his 
children.      And   by    the   same    article   it   was   provided 
further  that  such  holders  of  land  might  become  citi- 
zens of  the  United  States.     This  treaty  excited  bitter 
opposition  and  protest  in  the  nation  at  large.     Tak- 
ing the  Cherokee  nation  as  a  whole,  the  great  majority 
were  against  it.      In  1819  a  definite  settlement  of  the 
question  arising  from  the  treaty  of  1817  was  attempted 
and   a    treaty    concluded.      The   treaty,   February    27, 
1819,    said:      "The    greater    part    of    the    Cherokee 
nation  have  expressed  a  desire  to  remain  on  this  (east) 
side  of  the  Mississippi,  and  .   .   .  being  desirous   .   .   . 
that  the  treaty  of  1817  be  finally  adjusted,  have  offered 
to  cede  to  the  United  States  a  tract  of  country."  ^^     Ar- 
ticle one  read:  "This  treaty  is  a  final  adjustment  of 
that  of   1817."      Article  five   promised   that   intruders 
and  future  intruders  should  be  removed  by  the  United 
States.      Land   was    ceded    east   in   proportion   to    the 
number  of  those  who  went  to  the  Arkansas  River — the 
new  Cherokee  country  in  the  west.     President  Adams 

12  U.  S.  Stat,  at  Large,  vol.  T,  p.  156. 

13  Stat,  at  Large,  vol.  7,  p.  195. 


14j  The  Cherokee  Indians 

in  the  preliminary  negotiations  had  urged  that  not 
too  much  territory  be  retained,  as  the  Indians  would 
in  that  case  wish  to  sell  at  a  later  date  and  perhaps 
the  Washington  Government  would  not  be  willing  to 
buy.  Besides  the  larger  cession,  a  piece  of  land 
twelve  miles  square  was  sold  to  the  Federal  Govern- 
ment to  be  disposed  of,  the  income  to  be  applied  for 
the  benefit  of  the  Indians  as  the  President  might 
think  proper. 

If  the  Cherokees  who  went  west,  went  expecting  to 
leave  their  troubles  behind  them  and  to  find  an  Eden 
beyond  the  Mississippi,  they  soon  learned  their  error. 
Whites  intruded  on  their  new  territory  as  they  had 
intruded  on  the  old,  and  complaint  was  made  at  Wash- 
ington that  the  annuities  were  irregularly  distributed, 
and  the  promise  of  an  outlet  west,  which  had  been 
made,  had  not  been  fulfilled.  Then,  once  more  there  were 
grievances  to  be  settled.  Again  negotiations  were 
opened  with  the  Government,  but  before  the  latter 
would  consider  the  justice  of  their  complaint  it  de- 
manded that  those  Cherokees  who  had  so  recently  left 
their  homes  and  native  soil  should  again  exchange 
their  lands  for  others  farther  west.  Forced  to  accede 
to  this  request  or  have  their  grievances  uninvestigated, 
they  entered  into  a  treaty  by  which  they  agreed  to 
move  from  Arkansas  into  Indian  Territory.  The 
treaty — which  procured  the  delegates  who  signed  it 
an  unenviable  reception  when  they  returned  to  their 
people — granted  them  a  perpetual  outlet  west,  and 
fifty  thousand  dollars  to  reimburse  them  for  the  cost 
of  removal  and  also  because  of  the  lower  valuation  of 
the  new  lands.     Article  eight  made  provision  for  such 


The  Cherokee  Indians  15 

of  the  nation  east  as  might  wish  to  join  their  western 
brethren  in  the  future,  and  offered  inducements  to 
Eastern  Cherokees  to  go  west.^*  In  18S3  a  treaty 
that  was  really  a  supplement  to  this  was  concluded, 
setthng  the  conflicting  claims  of  the  Cherokees  and 
Creeks. 

A  vivid  understanding  of  the  fortunes  of  the  Cher- 
okee nation  thus  far  may  be  had  by  considering  the 
change  which  a  century  had  produced  in  their  ances- 
tral possessions.  In  1721,  before  the  first  treaty  was 
made  with  Governor  Nicholson  the  Cherokee  territory 
comprised  great  sections  in  North  Carolina,  in  Geor- 
gia, in  Tennessee,  in  Kentucky,  and  in  South  Car- 
oHna,  and  smaller  sections  in  Virginia,  West  Virginia 
and  Alabama.  These  sections  were  contiguous  and  to- 
gether formed  a  country  the  extent,  beauty  and  value 
of  which  could  scarcely  be  surpassed.  At  the  begin- 
ning of  the  Federal  period  the  tribe  had  suffered  the 
loss  of  all  their  possessions  in  Virginia  and  West  Vir- 
ginia, almost  all  in  Kentucky  and  South  Carolina, 
about  half  of  their  teritory  in  North  Carolina,  and  small 
sections  in  Georgia  and  Tennessee.  Finally  after  the 
conclusion  of  the  Treaty  of  1819,  there  was  left  to 
the  Cherokees  of  their  original  country  a  tract  in  the 
northwest  comer  of  Georgia  about  one  hundred  miles 
square,  or  a  little  more  than  half  the  size  of  the  orig- 
inal tract  in  that  State,  a  tract  not  half  as  large  in 
Alabama  and  smaller  sections  in  Tennessee  and  North 
Carolina.  Slice  by  slice,  according  to  the  increasingly 
voracious  appetite  of  the  whites,  the  land  went  until 
the  helpless  Indian  saw  the  mere  remnant  that  has  been 
described. 

14  Stat,  at  Large,  vol.  7,  p.  311. 


16  The  Cherokee  Indians 

But  was  he  to  be  allowed  the  remnant?  Was  he 
to  find,  though  with  diminished  territories,  the  freedom 
from  molestation  which  he  desired?  No;  the  end  was 
not  yet. 

In  1802  Georgia  had  ceded  to  the  United  States 
the  territory  that  now  forms  Alabama  and  Missis- 
sippi— or  more  accurately  the  greater  part  of  them — 
and  the  Federal  Government  in  turn  paid  Georgia  one 
million  two  hundred  and  fifty  thousand  dollars,  assumed 
the  burden  of  what  were  known  as  the  Yazoo  claims,  and 
incurred  the  obligation  to  extinguish  the  Indian  title 
to  land  in  Georgia  as  soon  as  it  could  be  done 
peaceably  and  on  reasonable  terms. ^^  After  the  treaty 
of  1817,  which  left  a  large  number  of  Indians  in  Geor- 
gia, agitation  in  that  State  began  and  increased  in 
volume  and  determination.  In  view  of  the  cession  of 
1802  Georgia  looked  with  indignation  at  the  Indians 
within  her  borders  and  considered  that  the  Central  Gov- 
ernment was  not  keeping  faith.  It  was  charged  that 
practically  no  attempt  had  been  made  by  the  Federal 
Government  to  carry  out  the  agreement.  Certainly 
the   charge   was   not   substantiated.      The   removal    of 

1817  which  took  a  part  of  the  nation  west  might  have 
been  accomplished  in  a  manner  more  satisfactory  to 
Georgia,  but  it  must  be  remembered  that  every  scheme 
looking  toward  a  surrender  of  their  lands  for  lands 
in  the  west  was  opposed  by  the  Cherokee  people.     In 

1818  an  effort  was  put  forth  to  gain  a  cession  of  all 
Cherokee  lands  east,  but  in  vain.  The  treaty  of  the 
following  year  was  undoubtedly  the  best  that  could 
be  obtained.  In  1823  a  commission  appointed  for  the 
purpose  tried  to  induce  the  Cherokees  to  part  with  their 

15  Amer.  State  Papers,  vol.  16,  p.  125. 


The  Cherokee  Indians  17 

Georgia  possessions,^^  but  the  Indians  in  reply  recited 
the  hardships  which  had  been  endured  by  those  who 
had  migrated,  emphasized  their  own  progress  in  civili- 
zation, dwelt  upon  their  love  for  the  soil  of  their 
fathers,  and  ended  by  saying  decisively  that  they  would 
never  cede  one  foot  of  land.^^  The  commission  was 
persistent  in  its  attempts  to  bring  about  a  cession. 
It  was  not  only  urgent,  but  threatening.  In  con- 
trast was  the  courtesy  of  the  Indians.  To  one  of  the 
letters  answer  was  given  that  "  with  deliberation,  can- 
dor and  good  nature  they  rejected  the  proposal  to  go 
west."i8 

Early  in  1824  the  Governor  of  Georgia  wrote  to 
the  Secretary  of  War  pressing  Georgia's  claims  upon 
his  attention,  and  about  the  same  time  the  Georgia 
delegation  in  Congress  brought  the  matter  before  their 
colleagues.  One  of  the  consequences  was  a  protest 
from  the  Cherokees.  It  read  in  part :  "  With  un- 
feigned regret  and  pain  we  discover  sentiments  ex- 
pressed by  the  Governor  of  Georgia.  We  cannot  but 
view  the  design  as  an  attempt  bordering  on  a  hos- 
tile disposition  toward  the  Cherokee  nation  to  wrest 
from  them  by  arbitrary  means  their  just  rights  and 
liberties,  the  security  of  which  is  solemnly  guaranteed 
them  by  these  United  States."  They  said  there  was 
not  a  spot  west  of  the  Mississippi  outside  of  the  States 
and  Territories  and  within  the  limits  of  the  United 
States  that  they  would  ever  consent  to  inhabit.  There 
was  nothing  to  do  in  the  west  except  hunt  and  fight 
other  Indians   and   they  had   given   up   the   chase   and 

16  Amer.  State  Papers,  Indian  Affairs,  vol.  1,  p.  467. 

17  Amer.  State  Papers,  Indian  Affairs,  vol.  1,  p.  469. 

18  Amer.  State  Papers,  Indian  Affairs,  vol.  1,  p.  487. 


18  The  Cherokee  Indians 

had  turned  to  the  pursuits  of  civilized  man.  The  pro- 
test concluded  with  an  appeal  to  the  magnanimity  of 
the  American  Congress  for  justice. ^^ 

President  Adams's  attitude  was  shown  in  a  communi- 
cation to  Congress  in  which  he  said  he  would  like  to 
please  Georgia,  but  negotiations  with  the  Indians  were 
hopeless  and  he  would  not  use  force.  But  Georgia  per- 
sisted and  became  pugnacious.  On  December  19, 
1827,  the  Senate  of  that  State  adopted  resolutions 
which  were  forwarded  to  Congress  and  which  argued 
that  the  Indians  in  no  proper  sense  had  title  to  the 
land.  They  were  occupants  and  must  be  evicted  by 
force  or  peaceably.  If  the  former  way  were  adopted 
there  would  be  no  need  of  any  pecuniary  stipulation; 
if  the  latter,  a  pecuniary  stipulation  should  be  paid, 
not  as  a  matter  of  right,  but  for  reasons  of  policy  and 
humanity.  If  the  United  States  did  not  rid  Georgia 
of  the  Indians,  the  State  claimed  full  liberty  to  resort 
to  force,  if  necessary.^^  There  was  also  a  protest — as 
there  was,  too,  in  a  letter  written  by  Governor  Forsyth 
of  Georgia  to  President  Adams  (January  26,  1828) — 
against  a  constitution  which  the  Cherokees  had 
adopted. 

In  May,  1828,  there  was  an  appropriation  made  by 
Congress  for  the  execution  of  the  agreement  with 
Georgia.  This  appropriation  stimulated  the  Govern- 
ment to  new  energy  of  effort.  Orders  were  given  to 
Colonel  Montgomery,  an  Indian  agent,  to  provide 
transportation  for  such  Cherokees  as  would  go  west. 
Rifles  and  blankets  were  provided  for  those  that  would 
go.     A  Captain  Rogers  was  sent  to  work  among  the 

19  Cong.  Doc.  102,  No.  133. 

20  Cong.  Doc.  165,  No.  80. 


The  Cherokee  Indians  19 

people  privately  to  induce  them  to  go.  The  Georgia 
resolutions  advocating  the  use  of  force,  if  necessary, 
were  to  be  exhibited  to  the  Indians — not  as  a  threat, 
but  to  urge  them  to  emigrate!  Then  Colonel  Mont- 
gomery was  ordered  to  leave  his  office  in  charge  of  a 
sub-agent  and  go  among  the  Indians  personally,  per- 
suading them  to  enroll  as  emigrants.  Colonel  Montgom- 
ery reported  great  and  bitter  opposition  among  the 
Cherokees  both  toward  the  agents  and  the  Indians  who 
were  enrolling.^  ^  At  this  stage  Georgia  began  to  take 
matters  into  her  own  hands  and  passed  a  series  of  laws 
directed  against  the  Indians.  One  annexed  Cherokee 
territory  within  Georgia  to  the  State,  and  declared  that 
all  laws  and  usages  made  and  enforced  there  by  the 
Indians  should  be  null  and  void  after  June  1,  1830. 
Another  said  that  "  no  Indian  or  descendant  of  an  In- 
dian should  be  a  competent  witness  or  party  to  a  suit 
to  which  a  white  man  was  a  party."  This  brought  vig- 
orous protests  from  the  Cherokee  country.  One  signed 
by  John  Ross  and  others,  February,  1829,  contrasted 
those  laws  with  Georgia's  profession  of  belief  in  liberty 
and  the  rights  of  man ;  recalled  the  guarantees  of  the 
United  States  to  the  Cherokee  nation ;  pleaded  that  the 
Cherokees  were  an  innocent  party  not  responsible  for 
the  agreement  with  Georgia,  but  made  to  suffer  be- 
cause of  it ;  protested  that  the  happiness  to  be  gained 
by  removal  west  was  purely  visionary ;  and  pointed  to 
the  advancement  of  the  people  due  largely  to  their 
proximity  to  civilization  and  civilizing  influences. ^^ 
Another  memorial  was  sent  to  Congress  the  same  year, 
signed   by   three   thousand   and   eighty-five   Cherokees. 

21  Cong.  Doc.  186,  No.  95. 

22  Cong.  Doc.  187,  No.  145. 


20  The  Cherokee  Indians 

The  Cherokees  did  not  see  when  they  surrendered  their 
rights,  which  were  acknowledged  by  Great  Britain, 
whose  allies  they  had  been.  They  had  been  treated  as 
independent  in  the  Revolution,  having  continued  the 
war  until  1785.  And  if  they  were  subjects  and  not 
a  nation,  why  did  Washington  make  a  treaty  with 
them.?  23 

There  was  reason  enough  for  the  alarm  of  the 
Cherokees,  for  Georgia  had  only  just  begun  her  co- 
ercive measures.  A  law  was  enacted  by  the  Georgia 
legislature  which  made  null  and  void  all  contracts  be- 
tween whites  and  Cherokees,  and  prohibited  suits  based 
on  them.  Another  law  prohibited  the  holding  of  a 
council  or  legislative  assembly.  Violations  of  this  law 
were  punishable  by  imprisonment  in  the  penitentiary. 
Still  another  law  sold  improvements  of  the  Cherokees 
who  had  gone  west,  to  the  whites.  It  was  alleged  that 
the  missionaries  among  the  natives  were  being  perse- 
cuted.2*  One  was  removed  from  office  and  a  liquor 
dealer  was  put  in  his  place.  The  Cherokees  com- 
plained, too,  that  intruders  with  no  pretext  were  boldly 
trespassing  on  the  rights  of  the  Indians,  violently 
forcing  natives  from  their  houses  and  taking  possession 
of  the  property  themselves.  When  the  United  States 
troops  removed  some  of  the  intruders  who  had  gone 
into  the  very  heart  of  the  country,  an  armed  band,  in 
retaliation,  murdered  one  Cherokee,  wounded  another 
and  had  a  third  thrown  into  jail;  he  was  released, 
after  a  delay,  upon  a  writ  of  habeas  corpus.  Tres- 
passers removed  by  the  troops  returned  with  impunity. 
In  one  of  the  many  protests  of  the  time  ^^  Jefferson  was 

23  Cong.  Doc.  201,  No.  311.  24  Cong.  Doc.  217,  No.  45. 

25  Cong.    Doc.    208,    No.    57. 


The  Cherokee  Indians  21 

aptly  quoted.  He  had  said  that  the  United  States 
would  buy  only  when  the  Indians  were  willing  to  sell. 
By  act  of  the  legislature  Georgia  seized  the  gold  mines 
of  the  Cherokees  and  prohibited  the  Indians  from  work- 
ing the  mines.  A  case  was  taken  to  court  and  a 
Georgia  court  declared  against  the  law,  but  the  execu- 
tive ignored  the  ruling  of  the  court  of  his  own  State. 

Meanwhile  the  country  at  large  was  being  aroused 
by  the  callousness  of  Georgia.  Protests  were  sent  to 
Congress.  One  from  citizens  of  Adams  County,  Penn- 
sylvania, presented  the  Indians'  side  of  the  case  so 
well  that  it  can  well  be  quoted  in  part.  It  prayed 
for  the  protection  of  the  Indian  from  intruders 
whether  allowed  by  the  State  law  or  not.  "  We  believe 
that  the  Cherokee  nation  hold  the  absolute  right  to  the 
lands  which  they  now  possess  by  a  title  indefeasible 
by  the  acts  of  this  or  any  other  nation  without  their 
consent.  .  .  .  Their  possessions  are  reduced  to  so  nar- 
row a  compass  as  not  in  our  opinion  to  justify  further 
unauthorized  encroachments  on  the  ground  of  national 
necessity  or  policy.  The  Cherokees  are  an  independent 
nation  and  entitled  to  all  rights  of  such  except  so  ^ar 
as.  surrendered  by  treaty.  In  defiance  of  treaties 
Georgia  passed  laws  annihilating  the  national  exist- 
ence of  the  Cherokees.  We  view  with  alarm  the  scheme 
to  justify  the  abandonment  of  the  Indians  by  doctrines 
promulgated  by  high  officers  and  embodied  by  the 
President  in  his  message  that  the  act  of  Congress  ^^ 
(1802)  passed  in  pursuance  of  prior  treaties  is  un- 
constitutional and  not  obligatory  on  Georgia  and  the 
Federal  Government."  A  reference  to  prior  acts  of 
Georgia,  the  protesters  said,  would  show  she  could  not 
26  An  Intercourse  Act. 


22  The  Cherokee  Indians 

sustain  this  position.  The  treaties  of  Hopewell  and 
Holston  and  the  act  of  Congress  referred  to,  all  took 
place  before  the  adoption  of  the  articles  of  agreement 
and  cession  by  the  United  States  and  the  State  of  Geor- 
gia by  which  Georgia  ceded  part  of  her  territory  to  the 
United  States.  In  those  articles  Georgia  explicitly 
acknowledged  the  existence  of  the  Indians  as  a  nation 
with  whom  the  United  States  were  to  hold  treaties  and 
extinguish  the  title  to  their  territories  as  soon  as  the 
same  could  be  peaceably  and  reasonably  done.  By 
such  acknowledgment  she  certainly  admitted  the  valid- 
ity of  former  treaties  and  laws  which  guaranteed  their 
protection  and  distinct  existence.  The  Treaty  of 
Hopewell  was  older  than  the  Constitution  itself;  hence 
the  adoption  of  the  Constitution  which  declares  treaties 
to  be  the  supreme  law  of  the  land  was  a  direct  recog- 
nition of  the  right  to  treat  with  Indians  according 
to  the  provisions  of  the  compact.^"^  Another  similar 
petition  from  Freeport,  Maine,  brought  forth  a  coun- 
ter-protest from  the  same  place  alleging  that  the  agi- 
tation on  behalf  of  the  Indians  was  false  philanthropy 
and  was  for  the  purpose  of  making  President  Jack- 
son unpopular.2^  The  charge  that  protests  were  im- 
pelled by  political  motives  can  hardly  be  sustained  in 
view  of  the  closeness  of  some  of  the  votes  on  the  Cher- 
okee question  in  Congress  and  in  view  of  the  wide- 
spread character  of  the  indignation  against  Georgia. 
Georgia's  defense  was  vigorous,  if  not  virtuous.  In 
reply  to  an  able  and  merciless  flaying  of  Georgia  in 
the  Senate  by  Mr.  Frelinghuysen  of  New  Jersey,  Sen- 
ator Forsyth  championed  her  policy .^^     The  land  was 

STCong.  Doc.  906,  No.  90.  28  Cong.  Doc.  206,  No.  89. 

29  Debates  in  Congress,  1829-30,  p.  325  et  seq. 


The  Cherokee  Indians  23 

Georgia's.  The  Indians  were  nothing  more  than  oc- 
cupants. The  State  was  no  more  coercive  toward  the 
red  man  than  were  other  States ;  she  was  no  less  moved 
by  humanitarian  sentiment.  Treaties  were  quoted  to  prop 
up  the  argument.  The  Federal  Government,  he  ar- 
gued, had  ceded  certain  rights  over  the  Indians  by 
the  cession  of  1802  which  said,  "The  United  States 
cede  whatever  claim,  right  or  title  they  may  have  to 
the  jurisdiction  or  soil  of  any  lands "  in  Georgia. 
This  argument  proved  too  much,  however,  for  the 
rights  of  the  United  States  were  subject  to  other  treaty 
stipulations,  which  logically,  according  to  Forsyth's 
argument,  were  also  assumed,  and  which  included  a 
promise  of  the  soil  to  the  Indians  as  their  perpetual 
possession,  and  the  right  of  self-government.  There 
was  no  doubt  some  truth  in  the  assertion  that  some 
other  States  had  passed  laws  which  on  paper  were  not 
unlike  some  of  the  acts  of  Georgia.  But  that  ought 
to  have  deceived  nobody.  The  conditions  in  Georgia 
were  very  different.  There  the  Indians,  having  had  taken 
from  them  the  power  of  governing  themselves,  received 
no  protection  from  Georgia.  A  white  man  could  tres- 
pass, steal  and  murder,  but  the  Indians  were  disqualified 
as  witnesses  by  law.  What  and  where  was  their  redress  ? 
They  sought  it  from  Congress,  but  with  little  result. 
On  May  S6,  1830,  to  a  bill  looking  toward  the  removal 
of  the  Indians  from  their  lands,  Mr.  Frelinghuysen 
offered  an  amendment  guaranteeing  protection  to  the 
tribes  until  they  should  choose  to  remove.  But  it  was 
lost — seventeen  to  twenty-six. ^"^  There  was  still  one 
channel  for  possible  justice  open  to  the  Cherokees — 
the  courts.  And  to  them,  ther  turned  their  attention. 
30  Debates  in  Congress,  18^-30,  p.  456. 


24  The  Cherokee  Indians 

In  Congress  and  out  of  Congress  there  had  been 
a  great  deal  of  discussion  concerning  the  status  of 
the  Indians,  and  the  most  diverse  views  prevailed.  In 
fact,  their  position  was  an  anomalous  one,  and  the 
methods  of  treating  the  natives  which  had  been  in 
vogue  could  be  made  to  support  contradictory  views. 
The  only  explanation  which  is  adequate  seems  to  be 
that  there  were  two  inconsistent  views  maintained  to- 
gether, however  illogically,  from  the  beginning.  The 
Indians  were  declared  to  have  rights ;  in  some  sense 
to  be  owners  of  the  soil ;  to  be  nations  with  whom 
treaties  could  be  made.  But  sub-consciously  there  was 
also  the  feeling  that  the  Indians  were  not  absolutely 
sovereign ;  that  the  European  claims  to  the  New  World 
were,  in  the  last  analysis,  paramount.  As  years  rolled 
by  this  feeling  became  a  definitely  formulated  claim. 
Only  by  keeping  this  in  mind  can  we  understand  the 
history  of  the  Indians  in  their  relations  to  the  white 
man's  government  up  to  this  point.  In  1763  the  King 
of  Ensfland  issued  a  proclamation  enunciating  the 
principle  of  Indian  risrhts  to  the  soil  unless  the  ground 
were  purchased  or  ceded.  But  the  same  proclamation 
regarded  the  Indians  as  having  acknowledsred  the  do- 
minion of  Great  Britain,  and  scave  grants  to  the  whites 
and  reservations  to  the  Indians.  Reference  has  al- 
ready been  made  ^^  to  the  fact  that  many  of  the  colonies 
as  a  rule — and  all  of  them  at  times — purchased  erround 
from  the  natives.  The  Fede^-al  Government  treated 
with  t^^  riiornVppq  for  Df^ace  in  1^^^ — separatelv  from 
Great  Britain,  whose  allies  thev  had  been.  Amons:  the 
provisions  of  the  Treaty  of  Hopewell  was  one  which 
allowed  the  Cherokees  to  punish  according  to  their  own 
31  See  Chapter  I. 


The  Cherokee  Indians  25 

laws,  a  white  intruder  who  remained  unauthorized  in 
their  country  for  six  months.  Surely  that  was  a 
strange  proceeding  with  people  who  had  absolutely  no 
rights !  The  terminology  of  the  Treaty  of  Holston  was 
such  as  to  imply  the  recognition  of  the  Indian  right 
of  sovereignty:  the  making  of  a  treaty.  The  land 
was  spoken  of  as  owned  by  the  Indians.  Each  party 
seemed  free  to  act.  The  Cherokees  were  spoken  of  as 
"  a  nation."  The  United  States  solemnly  guaranteed 
to  the  Cherokee  nation  all  their  lands  not  hereby  ceded 
forever.^  ^  Subsequent  treaties  confirmed  that  of  Hol- 
ston. Jefferson  had  said  that  all  beyond  the  boundary 
line  "  we  consider  absolutely  belonging  to  our  red 
brethren."  In  a  letter  to  the  Secretary  of  War  (Jan- 
uary 18,  1821),  Jackson  mentioned  the  absurdity  of 
an  independent  sovereign  nation  holding  treaties  with 
people  living  within  its  borders,  acknowledging  its 
sovereignty  and  laws,  and  who,  although  not  citizens, 
cannot  be  viewed  as  aliens,  but  as  real  subjects  of  the 
United  States.  The  Secretary  of  War,  November  24, 
1824,  urged  Congress  by  legislative  enactment  to  de- 
fine more  clearly  the  relations  in  which  we  stood  to 
the  Indians.  Two  theories  existed:  the  first  advocated 
the  primitive  and  imprescriptible  rights  of  the  In- 
dians ;  the  second  considered  them  mere  tenants  at  will. 
Both,  he  said,  were  extreme.  He  suggested  that  the 
government  take  a  paternal  attitude.^^  In  the  Senate 
Mr.  Frelinghuysen  applied  to  the  relations  with  the 
Indians  the  principle  laid  down  by  Vattel  "  one  com- 
munity may  be  bound  to  another  by  a  very  unequal 
alliance  and  still  be  a  sovereign  state."  He  claimed 
the  Indians  were  dependent  upon  us  for  protection, 
82  Art.  7.  33  Cong.  Doc.  184,  No.  2. 


26  The  Cherokee  Indians 

but  retained  their  sovereignty.^^  In  1827  the  Cherokees 
had  adopted  a  constitution.  The  government  thus  in- 
stituted had  the  three  departments:  executive,  legis- 
lative and  judicial,  and  in  general  was  modeled  after 
the  American  Government.  This  proceeding  was  one 
to  which  Georgia  took  exception,  and  the  President 
had  directed  that  the  Cherokees  be  informed  that  it 
could  be  regarded  only  as  of  a  municipal  nature.^ ^  But 
something  definite  and  authoritative  was  to  be  said 
in  regard  to  the  relations  of  the  Indians  to  the  Fed- 
eral Government.  In  their  contest — if  it  can  be  called 
such — with  Georgia  the  Cherokees  had  brought  suit 
in  the  United  States  courts.  The  question  raised  in 
the  suit  was  not  answered,  but  the  opinion  written  by 
Chief  Justice  Marshall  was  epoch-making.  For  it 
spoke  definitely  and  with  authority,  describing  the 
Cherokees  as  a  "  domestic  dependent  nation  "  and  the 
United  States  as  guardian.  The  tribe  could  not  main- 
tain an  action  in  the  courts.^^ 

The  Cherokees  during  this  period  had  other  minor 
causes  of  complaint  against  the  Federal  Government. 
Georgia  had  made  a  claim  to  a  certain  portion  of 
Cherokee  territory  under  a  treaty  with  the  Creeks 
which,  it  was  alleged,  was  rendered  void  by  a  subsequent 
treaty  with  the  same  tribe  in  1826.  The  President 
declared  a  line  of  boundary  which  was  neither  the  one 
contended  for  by  Georgia  nor  the  one  demanded  by 
the  Indians.  This  line  was  determined,  furthermore, 
by  the  Treaty  of  1817  that  had  been  abrogated  by  that 
of  1819,  which  declared  itself  to  be  a  final  adjustment 
of  the  Treaty  of  1817.   The  result  was  that  the  discon- 

34  Debates  in  Cong.,  1829-30,  p.  309  et  seq. 

85  Cong.  Doc.  173,  No.  211.  se  5  Peters,  p.  1. 


The  Cherokee  Indians  S7 

lent  of  neither  party  was  allayed.  And  the  Government 
showed  a  strange  perversity  in  the  manner  of  paying 
the  annuities.  The  annuity  was  about  forty-two  cents 
per  capita,  and  the  Government,  reversing  its  former 
policy,  insisted  upon  paying  it  to  the  people  as  indi- 
viduals. This  caused  inconvenience  and  was  objected 
to  by  the  people,  who  wished  it  paid  to  the  authorities 
of  the  Cherokee  nation.  Though  the  elections  were 
held  under  the  auspices  of  United  States  agents  and 
the  Cherokees  voted  almost  unanimously  for  the  pay- 
ment of  the  annuities  into  the  national  treasury,  the 
Government  was  slow  in  being  convinced  as  to  the 
wishes  of  the  nation,  and  persisted  for  a  long  time  in 
disregarding  the  expressed  desire  of  the  Cherokees. 

The  set-back  resulting  from  Chief  Justice  Mar- 
shall's decision  in  "  The  Cherokees  vs.  Georgia  "  that 
the  Cherokee  nation  could  not  bring  a  case  to  court 
was  only  temporary.  Other  attempts  were  made  to 
get  the  Georgia  legislation  before  the  courts.  A 
Cherokee  murdered  another  Cherokee,  was  arrested  by 
Georgia  officials,  tried  in  the  courts  of  the  State  and 
convicted.  Thereupon  application  was  made  to  a  Fed- 
eral court  for  a  writ  of  error  which  was  duly  granted. 
But  Georgia,  ignoring  the  writ  of  error,  executed  the 
man  according  to  the  sentence  that  had  been  pro- 
nounced upon  him.  But  this  was  not  all.  One  of  the 
acts  passed  by  the  legislature  of  Georgia  sought  to 
compel  all  white  people  residing  in  Cherokee  country 
to  take  an  oath  of  allegiance  to  the  State.  A  mis- 
sionary named  Worcester  was  indicted  for  residing 
there  without  a  permit  and  without  having  taken  the 
oath  of  allegience  to  the  State.     Worcester  claimed  to 


28  The  Cherokee  Indians 

be  a  citizen  of  the  State  of  Vermont,  and  appealed  to 
the  United  States  courts.  The  Supreme  Court  in  its 
decision  declared  unconstitutional  those  laws  by  which 
Georgia  had  extended  her  jurisdiction  over  Indian  ter- 
ritory, and  declared  the  law  under  which  Worcester 
had  been  indicted  null  and  void.  This  case,  "  Wor- 
cester vs.  Georgia "  ^^  ranks  in  importance  with  the 
famous  Cherokee  case  which  has  been  discussed.  At 
length  there  seemed  a  prospect  of  the  Cherokees'  ob- 
taining justice.  The  President  was  inflexible  in  his 
opposition  to  them;  in  Congress  party  lines  were  being 
drawn  in  regard  to  the  subject;  but  the  courts  had 
spoken  and  the  decision  was  a  victory  for  the  Indians' 
contention,  and,  it  must  be  added,  for  justice. 

37  6  Peters,  p.  515. 


CHAPTER  IV 

THE    TREATY    OF    NEW    ECHOTA 

JAGKSON  was  in  a  dilemma.  The  Supreme  Court 
had  pronounced  its  verdict,  but  Georgia  was  pre- 
pared to  fight  rather  than  submit.  What  would  the 
President  do?  He  was  not  long  in  coming  to  a  decision. 
He  refused  to  enforce  the  decision  of  the  Supreme 
Court!  The  reiterated  promise  common  to  the  treaties, 
from  Hopewell  down,  admitting  the  Cherokees'  right 
to  their  land,  and  guaranteeing  them  protection  in  the 
enjoyment  of  that  right;  the  assurances  of  Washing- 
ton and  Jefferson;  the  specific  provisions  of  the  indi- 
vidual treaties — all  these  were  not  worth  the  paper 
they  had  been  written  on.  Sentiments  for  fair  dealing ; 
the  services  of  the  Cherokees  to  the  Government  in  the 
war  with  the  Creeks ;  their  aid  in  the  War  of  1812 — 
they  had  fought  under  Jackson  himself — these  were 
to  have  no  weight.  The  Cherokees  were  to  be  left  to 
the  impartiality  of  Georgia  laws,  the  moderation  of 
Georgia  executives  and  the  mercies  of  the  Georgia 
rabble  1  It  was  optional  with  Georgia  whether  she 
should  or  should  not  obey  the  decrees  of  the  Federal 
courts ;  she  could  defy  the  Federal  Government  at  her 
pleasure.^     The  executive  who  was  ready  to  put  down 

1  The  fact  is  that  in  defiance  of  the  Supreme  Court  "Worcester 
was  sent  to  prison,  where  he  remained  until  it  became  evident 
that  the  Indian  question  would  be  settled  in  a  manner  satisfac- 
tory to  Georgia,  when  he  was  pardoned  by  the  Governor. 


30  The  Ch'irokee  Indians 

with  force  the  assertion  of  State  sovereignty  in  South 
Carolina  was  willing  to  acquiesce  in  the  assertion  of 
it  in  Georgia.  Nor  was  it  that  Jackson  felt  himself 
powerless.  The  truth  is  that  all  his  correspondence, 
conversation  and  actions  indicated  that  he  substantially 
agreed  with  Georgia.^ 

Having  taken  the  position  that  the  Cherokees  would 
not  be  aided  by  the  Federal  Government  in  maintain- 
ing their  rights,  President  Jackson  sought  escape  from 
his  anomalous  situation  by  bending  every  energy 
toward  obtaining  a  treaty  of  removal.  The  Cherokees, 
as  a  whole,  however,  demanded  protection  as  a  condi- 
tion precedent  to  negotiations  for  a  treaty.  The  push- 
ing of  Georgia  and  the  pulling  of  the  Federal  Gov- 
ernment at  length  elicited  two  propositions  from  the 
Indians.  If  they  would  cede  part  of  their  territory  to 
the  United  States  for  Georgia  would  the  Government 
then  protect  them  in  the  rest?  Secretary  of  War  Cass 
replied  that  it  was  beyond  the  power  of  the  President 
to  control  their  treatment  by  a  State.  Two  weeks 
later  (March  28,  1834)  came  the  second  proposition. 
If  they  ceded  a  part  of  their  territory  would  they  be 
protected  in  the  rest  for  a  definite  period,  the  Chero- 
kees ultimately  to  become  American  citizens.?  Cass 
replied  that  they  must  go  west.^ 

2  It  has  been  alleged  and  has  been  claimed  to  be  susceptible 
of  proof  that  President  Jackson  advised  oflBcials  of  Georgia  to 
pursue  the  policy  they  did.  See  letter  of  P.  M.  Butler,  March  4, 
1842,  to  Indian  Commissioner  Crawford.  G.  N.  Briggs,  Congress- 
man from  Massachusetts,  is  authority  for  the  statement  that  upon 
hearing  of  the  decision  of  the  Supreme  Court,  Jackson  said: 
"  John  Marshall  has  made  his  decision,  now  let  him  enforce  it." 
— Greeley,  "  American  Conflict,"  I,  p.   106. 

8  Cong.   Doc.  268,  No.  71. 


The  Cherokee  Indians  31 

About  this  time  Andrew  Ross,  a  chief  favorable  to 
removal,  offered  to  take  to  Washington  a  few  like- 
minded  chiefs  with  whom  a  treaty  might  be  made.  The 
President  accepted  the  offer  with  alacrity.  The  pro- 
ceeding brought  out  a  protest  from  the  anti-treaty 
Indians,  who  affirmed  that  the  committee  with  whom 
the  Government  was  negotiating  were  self-appointed 
and  unauthorized  by  the  Cherokee  nation.  The  com- 
mittee told  Secretary  Cass  that  the  protest  was  signed 
by  women,  children,  whites  and  Arkansas  Cherokees ; 
whereupon  accepting  this  sheer  assertion  by  the  oppo- 
site party  at  its  face  value,  Cass  wrote  to  John  Ross, 
Principal  Chief  of  the  Cherokees,  saying  that  the  peti- 
tion was  unworthy  of  consideration.  The  announce- 
ment that  a  treaty  had  been  concluded  with  Andrew 
Ross  and  others  brought  a  mighty  protest  from  the 
Cherokee  people.  But  the  Senate  did  not  ratify  the 
treaty  and  the  problem  was  no  different  except  that 
the  situation  was  more  acute.  In  the  correspondence 
of  this  time  between  John  Ross  and  Cass  the  latter 
invariably  evaded  the  issue  raised  by  Ross  and  in  an- 
swer to  all  arguments  merely  reiterated  the  necessity 
of  going  west. 

Driven  to  the  last  ditch,  there  arose  a  feeling  among 
some  of  the  Indians  who  had  before  been  opposed  to  re- 
moval that  it  would  be  best  to  capitulate,  making  the 
best  terms  possible.  These  Indians  were  known  as  the 
Treaty  Party  and  at  the  head  of  them  was  John 
Ridge.  Between  this  party  and  the  Anti-treaty  party 
led  by  John  Ross,  Principal  Chief,  there  was  the  bit- 
terest feeling.  By  the  spring  of  1834  even  the  Ross 
party  was  obliged  to  abandon  its  extreme  position,  for 


32  The  Cherokee  Indians 

white  men  had  seized  Indian  property,  together  with 
the  improvements  thereon,  and  naturally  the  new  pos- 
sessors would  so  change  the  property  to  suit  their 
purposes  that  the  improvements  wrought  by  Indians 
would  be  indistinguishable  from  those  made  by  whites. 
In  the  resulting  confusion  there  was  danger  that 
the  real  owners  would  lose  all.  To  guard  against 
this  a  commission  was  appointed  by  the  Cherokees  to 
register  the  improvements  made  by  Indians.  This  was 
regarded  as  the  first  step  looking  toward  a  treaty. 
The  arrest  by  the  Georgia  guard  of  two  of  the  com- 
missioners indicated  the  plan  of  the  State  to  interfere 
with  their  work,  and  made  a  treaty  more  unavoidable 
than  ever.^ 

In  November,  1834,  a  memorial  was  sent  to  Con- 
gress from  certain  Cherokees  who  were  desirous  of 
going  west.  They  would  not  go  west,  they  said,  if  they 
could  be  secured  in  their  eastern  possessions,  but  under 
existing  circumstances  they  were  ready  to  move,  but 
prayed  for  more  liberal  terms  than  had  been  sug- 
gested.^ In  the  following  winter  John  Ridge  was  in 
Washington,  as  was  John  Ross.  The  latter,  being  anx- 
ious to  secure  the  very  best  possible  terms  for  his 
people,  was  unwilling  to  consider  the  various  proposi- 
tions that  emanated  from  the  office  of  the  War  De- 
partment; and  the  Executive,  on  the  other  hand,  con- 
sidered Ross's  demands  unreasonable.  Ridge,  being  a 
treaty  man  and  jealous  of  Ross,  was  quite  ready  to 
negotiate  a  treaty  on  terms  which  the  Government  was 
willing  to  grant.  Hence  negotiations  were  entered 
into  with  him.     This  impelled  Ross  to  oiffer  to  sell  the 

4  Cong.  Doc.  292,  No.'  286,  p.  7. 

5  Cong.  Doc.  273,  No.  91. 


The  Cherokee  Indians  33 

Cherokee  country  for  twenty  million  dollars.  The  sum 
was  regarded  as  exorbitant.  Ross  finally  offered  to 
allow  the  Senate  to  decide  the  sum  tentatively,  the  mat- 
ter ultimately  to  be  submitted  to  the  Cherokee  nation. 
A  treaty,  however,  was  concluded  with  Ridge,  and  not 
with  Ross.  It  was  to  be  voted  upon  by  the  people 
at  the  council  which  was  to  meet  in  Red  Clay  in  Oc- 
tober, 1835.  Just  prior  to  the  assembling  of  the 
council  the  Treaty  and  Anti-treaty  parties  made  up 
their  differences  and  a  compromise  was  effected  between 
them.  When  this  general  council  of  the  Cherokee 
nation  met  it  not  only  rejected  the  treaty  which  had 
been  concluded  with  Ridge,  but  passed  a  resolution 
declining  to  treat  on  the  basis  of  five  million  dollars, 
which  was  the  amount  determined  upon  by  the  Sen- 
ate as  a  fair  price  for  the  Indian  lands.  In  accordance 
with  the  reconciliation  which  had  taken  place  between 
the  two  factions  a  committee  of  twenty  was  appointed, 
headed  b}^  John  Ross,  but  having  also  members  of  the 
other  party  (and  among  them  John  Ridge),  with  power 
to  enter  into  a  treaty  with  the  United  States.^  Upon 
consulting  Mr.  Schermerhorn,  the  Federal  commis- 
sioner, the  committee  learned  that  he  had  no  authority 
to  enter  into  a  treaty  with  them  upon  any  basis  other 
than  the  one  rejected  at  Red  Clay.  Thereupon  acting 
upon  instructions  it  was  decided  that  it  would  be 
necessary  to  go  to  Washington.  Ridge  and  his  lieu- 
tenant, Boudinot,  who  was  also  on  the  committee 
of  twenty,  agreed  to  this  decision.*^  John  Ross  was  at 
this  time  suddenly  arrested  and  thrown  into  jail.  No 
charge   was   made   against  him,   but   his   papers   were 

6  Cong.  Doc.  292,  No.  286. 

7  Cong.  Doc.  292,  No.  286,  p.  10. 


34  The  Cherokee  Indians 

seized.     In  a  few  days  he  was  released,  but  without 
apology  or  explanation.^ 

Arrived  in  Washington  the  harmony  so  recently 
established  was  short-lived.  Ridge,  animated  by  a  feel- 
ing of  jealousy  of  Ross,  returned  to  his  former  oppo- 
sition. The  Secretary  of  War  made  it  plain  to  the 
delegation  that  the  President  was  firm  upon  three 
points:  (1)  no  more  than  five  million  dollars  should 
be  paid  to  the  Cherokees;  (2)  there  should  be  no 
reservation  to  individuals ;  (3)  the  money  paid  to  the 
Indians  must  be  paid  to  the  individuals  of  the  tribe 
and  not  to  the  nation.^  In  the  Indian  country  Scher- 
merhom  was  not  relaxing  his  efforts  to  bring  about 
the  desired  result.  At  Red  Clay  Council  he  had 
posted  notices  calling  for  another  council  to  meet  at 
New  Echota,  Georgia,  in  December,  and  he  made  use 
of  the  interim  in  endeavoring  to  induce  the  recalcitrant 
natives  to  attend.  Upon  the  arrival  at  New  Echota 
of  such  of  the  Cherokees  as  could  be  persuaded  to 
appear,  Schermerhom  explained  the  necessity  of  a 
treaty,  expatiated  upon  its  advantages,  and  requested 
the  appointment  of  a  committee  to  confer  with  him  in 
regard  to  one.  A  committee  was  appointed;  a  con- 
ference held  and  a  treaty  agreed  upon.  Then  the 
committee  reported  to  the  council,  which  authorized 
them  to  conclude  the  treaty  on  behalf  of  the  Indians. 
Immediately  the  exultant  Schermerhom  wrote  to  Wash- 
ington that  he  had  the  honor  to  report  that  a  treaty 
had  been  concluded.^''  It  was  this  news,  reaching  John 
Ross  in  the  midst  of  his  unceasing  efforts  to  force  the 
Government  to   treat  upon  terms  more  acceptable  to 

8  Cong.  Doc.  292,  No.  286,  p.  36. 

9  Cong.  Doc.  292,  No.  286.        lo  Cong.  Doc.  292,  No.  286. 


The  Cherokee  Indians  35 

the  Cherokees,  that  brought  consternation  into  the 
camp  of  the  delegation  at  the  capital.  But  if  there 
was  consternation  there  was  also  indignation.  The 
Ross  delegation  had  been  authorized  to  negotiate  a 
treaty,  and  while  it  was  engaged  in  seeking  a  satis- 
factory settlement,  with  no  notice  to  it  a  treaty  had 
been  signed  by  another  committee.  Soon  the  facts 
came  to  light.  A  few  Indians  favorably  disposed  to 
a  treaty  had  responded  to  Schermerhorn's  call  for  a 
council  and  had  met  at  New  Echota.  With  them  the 
treaty  had  been  concluded.  The  council  itself  was 
not  one  regularly  called  by  the  authorities  of  the  Cher- 
okee nation,  but  by  the  United  States  commissioners. 
The  treaty  was  no  treaty.  The  evidence  is  conclu- 
sive. First  there  are  the  letters  of  Major  Davis. 
Major  Davis  was  appointed  by  the  President  to  go 
into  the  Cherokee  country  and  secure  the  consent  of 
the  Indians  to  removal  west.  His  work,  his  orders, 
his  appointment — held  by  the  grace  of  the  President — 
would  all  naturally  cause  him  to  say  or  do  nothing 
which  would  be  detrimental  to  the  plans  which  the 
Executive  had  determined  upon.  His  work  was  car- 
ried on  without  his  incurring  the  hostility  of  the  In- 
dians, by  whom  he  was  given  the  name  "  Straight 
Talk."  But  Major  Davis,  prompted  by  humanitarian 
sentiments  and  a  desire  for  fair  play,  upon  his  own 
initiative  wrote  to  Secretary  Cass,  informing  him  of 
the  facts  connected  with  the  making  of  the  Treaty  of 
New  Echota.  The  alleged  treaty  was  made  without 
the  vote  pro  or  con  of  the  great  body  of  the  nation. 
He  accused  Schermerhorn  of  deception  and  said  that 
there  were  not  five  hundred  present   as   Schermerhorn 


36  The  Cherokee  Indians 

had  claimed,  and  that  even  if  there  had  been,  five  hun- 
dred could  not  make  a  treaty  for  sixteen  thousand. ^^ 
Secondly  there  is  the  testimony  of  McCoy,  who  acted 
as  interpreter  at  New  Echota  and  who  certified  that 
the  vote  on  the  treaty  consisted  of  seventy-nine  yeas 
and  seven  nays.^^  Thirdly,  there  is  the  indisputable 
evidence  of  subsequent  events  in  the  Cherokee  country. 
When  he  learned  of  the  proceedings  at  New  Echota, 
Ross  did  not  remain  idle.  A  general  council  was  called 
and  convened  in  February,  1836.  From  that  council 
there  went  a  protest  against  the  treaty  to  Washington 
signed  by  twelve  thousand  Cherokees.-^^  This  was  but 
the  first  of  a  series  of  protests.  The  council  held  at 
Red  Clay,  September,  1836,  declared  the  treaty  null 
and  void,  sent  a  protest  signed  by  two  thousand  and 
eighty-five  and  appointed  a  delegation  to  go  to  Wash- 
ington to  make  known  in  no  uncertain  tone  the  facts 
of  the  case  and  the  sentiments  of  the  Indians. ^^  It 
was  one  thing  to  appoint  such  a  delegation,  but  quite 
another  for  that  delegation  to  obtain  access  to  the 
President.  In  October,  1836,  acting  Secretary  of  War 
Harris  said  that  no  delegation  of  the  Cherokees  wish- 
ing a  new  treaty  to  displace  that  of  New  Echota  would 
be  received  or  recognized.  So  like  the  Emperor  Henry 
IV  they  could  wait  outside  the  barred  door  until  the 
Power  within  should  relent. ^^ 

The    United    States    officials    persisted    in    asserting 
that  the  majority  of  the  Cherokees  were  favorable  to 

11  Cong.  Doc.  292,   No.  286,  p.  148   et  seq. 

12  Cong.  Doc.  292,  No.  286.   (Appended  Document  No.  81). 

13  Cong.  Doc.  292,  No.  286. 

14  Cong.  Doc.  325,  No.  99,  p.  IT. 

15  Cong.  Doc.  315,  No,  120,  p.  186. 


The  Cherokee  Indians  87 

the  treaty  and  that  all  the  trouble  was  because  of  the 
efforts  of  John  Ross  to  rouse  them  to  violence.  The 
truth  was  Ross  had  written  May  26,  1836,  urging  the 
Cherokees  to  ignore  the  treaty  but  to  remain  still  and 
quiet.-^^  Upon  the  strength  of  rumors  that  an  insur- 
rection was  brewing  in  the  Cherokee  country  troops 
had  been  sent  there.  General  Wool,  commanding  in 
that  district,  wrote  to  Harris  saying  that  when  he  first 
arrived  he  had  been  informed  that  most  of  the  Chero- 
kees were  ready  to  submit  to  the  treaty,  but  now  he  knew 
that  only  a  few  were  ready  to  do  so  and  they  were 
whites  or  half-breeds.^^  And  J.  Mason,  a  United  States 
oflScial,  wrote  to  the  Secretary  of  War  saying :  "  Ross 
and  his  party  are  in  fact  the  Cherokee  nation,'*  and 
that  officer  said  that  Ross  with  all  his  power  could  not 
change  the  course  of  the  people  if  he  would.  Were 
he  to  advise  acceptance  of  the  treaty  he  would  forfeit 
their — the  people's — confidence  and  probably  his  life. 
His  influence,  however,  was  for  peace. -^^ 

Quite  different  from  the  attitude  of  the  Indians  was 
that  of  the  Senate.  Of  that  body  it  must  be  related 
that  meanwhile  it  had  ratified  the  agreement  of  New 
Echota.  But  let  it  also  be  recorded  that  there  was 
but  one  more  vote  than  required  for  ratification.^^  Ac- 
cordingly on  May  23,  1836,  the  Treaty  of  New  Echota 
had  been  proclaimed. 

It  is  well,  right  here,  to  take  the  opportunity  of 
learning  the  provisions  of  this  treaty  which  had  called 

16  Cong.  Doc.  315,  No.  120,  p.  680. 

17  Cong.  Doc.  315,  No.  120,  p.  647. 

18  Cong.  Doc.  315,  No.  120,  p.  985. 

19  Letter  of  P.  M.  Butler  to  T.  H.  Crawford,  Ind.  Com.,  March 
4,  1842,  on  file  in  Ind.  Office. 


38  The  Cherokee  Indians 

forth  such  urgent  protests  from  the  Indians,  which  was 
beginning  to  agitate  the  country  at  large,  and  was 
awakening  one  of  the  bitterest  debates  ever  heard  in 
the  halls  of  Congress.  The  first  article  ceded  the  Cher- 
okee lands  for  five  million  dollars.  By  the  terms  of  the 
second  the  United  States  guaranteed  the  Cherokees  a 
perpetual  outlet  west,  and  the  free  use  of  the  country 
west  of  the  seven  million  acres  given  by  the  Treaty  of 
May  6,  1828,  and  supplements,  and  by  Treaty  of  Feb- 
ruary 14,  1833.  Other  Indians,  however,  were  to  be 
permitted  to  obtain  salt  from  the  salt  plain.  For  five 
hundred  thousand  dollars  the  United  States  was  to 
grant  by  patent  in  fee  simple  an  additional  tract  be- 
tween the  west  line  of  the  State  of  Missouri  and  the 
Osage  country.  By  the  terms  of  the  fourth  article  the 
United  States  agreed  to  extinguish  the  title  to  reserva- 
tions within  this  country  made  to  half-breeds  in  the 
Osage  Treaty  of  1825.  The  fifth  article  said  that  the 
land  ceded  to  the  Cherokees  in  the  west  "  shall  in  no 
future  time,  without  their  consent,  be  included  within 
the  territorial  limits  or  jurisdiction  of  any  State  or 
Territory."  The  United  States  was  to  protect  them  in 
the  laws  the  Cherokees  made,  providing  such  laws  were 
not  inconsistent  with  the  United  States  Constitution. 
The  sixth  article  promised  peace  and  friendship  between 
the  United  States  and  the  Cherokees.  The  latter  were 
to  be  protected  by  the  Federal  Government  from 
domestic  strife,  foreign  enemies  and  internecine  war 
between  the  several  tribes.  The  Cherokees  were  not  to 
make  war  upon  their  neighbors  and  were  to  be  pro- 
tected against  interruption  and  intrusion  from  citizens 
of  the  United  States.     Article  seven  said  that  the  Chero- 


The  Cherokee  Indians  39 

kees  should  be  entitled  to  a  delegate  in  the  House  of 
Representatives,  whenever  Congress  should  make  pro- 
vision for  the  same.  By  the  terms  of  the  eighth  article 
the  United  States  was  to  remove  the  Indians  west  and 
provide  them  with  subsistence  for  a  year.  Article  nine 
said  that  they  were  to  be  paid  for  improvements  made 
by  them  in  their  eastern  country.  It  was  stipulated  by 
article  ten  that  in  addition  to  the  annuities  already  re- 
ceived by  the  nation,  they  should  be  given  two  hundred 
thousand  dollars,  the  interest  of  which  was  to  be  for  the 
benefit  of  the  nation,  provision  being  made  for  the 
orphan  fund  and  a  permanent  school  fund.  In  article 
twelve  it  was  provided  that  those  Indians  who  did  not 
migrate  but  desired  to  become  citizens  should  receive 
their  proportion  for  claims  and  improvements.  Such 
Cherokees  wishing  to  reside  in  Tennessee,  Alabama,  or 
North  Carolina  should  be  entitled  to  pre-emption  rights 
to  one  hundred  and  sixty  acres  of  land,  or  one  quarter 
section,  at  the  minimum  Congress  price.  Article  thirteen 
said  that  all  who  had  rights  to  reservations  should  be 
confirmed  therein,  and  all  who  were  forced  by  the  State 
to  abandon  reservations  should  have  just  claim  against 
the  United  States.  Warriors  who  fought  for  the 
United  States  were  to  be  pensioned. ^^  The  fifteenth 
article  said  it  is  "  understood  that  after  deducting  the 
amount  actually  expended  for  improvements,  ferries, 
claims,  spoliations,  removals,  subsistence,  and  debts  and 
claims  upon  the  Cherokee  nation,  and  for  the  additional 
quantity  of  lands  and  goods  for  the  poorer  classes  of 
Cherokees,  and  the  several  funds  to  be  invested  for  the 
general  national  funds  provided  for  in  the  several 
articles  of  this  treaty,  the  balance,  whatever  the  same, 
20  Article  14. 


40  The  Cherokee  Indians 

shall  be  equally  divided  between  all  the  people  belonging 
to  the  Cherokee  nation  east,  and  such  Cherokees  as  have 
removed  west  since  1833  who  are  entitled  by  the  terms  of 
their  enrollment  and  removal  to  the  benefits  resulting 
from  the  final  treaty  between  the  United  States  and  the 
Cherokees  east,  they  shall  also  be  paid  for  their  im- 
provements .  .  ."  By  the  sixteenth  article  it  was 
agreed  that  the  Cherokees  were  to  remove  west  within 
two  years.  "  Those  dispossessed  of  improvements  and 
houses,  for  which  no  grant  has  actually  issued  pre- 
vious to  the  enactment  of  the  law  of  the  State  of 
Georgia  of  December,  1835  .  .  .  shall  again  be  put 
in  possession  and  placed  in  the  same  situation  and  con- 
dition in  reference  to  the  laws  of  the  State  of  Georgia 
as  the  Indians  that  have  not  been  dispossessed,  .  .  . 
if  not  done  .  .  ."  the  United  States  to  pay  the  several 
Cherokees  for  loss  and  damage  sustained.^  ^ 

This  was  the  treaty  in  its  salient  features.  There 
was  also  a  supplement  adopted  (December  29,  1835). 
The  supplement  had  three  provisions:  (1)  All  pre- 
emption rights  and  reservations  of  articles  twelve  and 
thirteen  were  to  be  null  and  void;  (2)  If  the  Senate  did 
not  intend  the  five  million  dollars  to  include  moving 
expenses,  It  was  to  vote  more;  (3)  six  hundred  thou- 
sand dollars  was  to  be  given  for  this  last  purpose,  and 
to  be  in  lieu  of  reservations  and  pre-emptions,  and  of 
the  sum  of  one  hundred  thousand  dollars  for  spoliations 
which  had  been  provided  for  in  article  one.  But  this 
article  was  to  be  referred  to  the  Senate.^^  This  was 
the  treaty  forced  upon  an  unwilling  people. 

It  has  already  been  stated  that  troops  had  been  sent 

21  Statutes  at  Large,  vol.  7,  p.  478. 

22  Statutes  at  Large,  vol.  7,  p.  488. 


The  Cherokee  Indians  41 

to  the  Cherokee  country.  It  was  indeed  infested  with 
troops.  The  spirit  of  the  Government  is  illustrated  by 
General  Wool's  terse  communication  to  the  Cherokees, 
with  whom  he  had  two  meetings  shortly  after  his  arrival 
in  their  country.  He  found  the  people  unfavorable  to 
the  treaty,  and,  therefore,  told  them  to  choose  peace 
or  war.^^  When  a  meeting  of  the  chiefs  broke  up,  no 
decisive  action  having  been  taken.  Wool  overtook  some 
of  the  chiefs,  held  them  prisoners  over  night,  and  re- 
leased them  only  upon  their  promise  that  they  would 
obey  the  treaty  and  that  the  young  men  should  bring 
their  arms  to  him.^^  To  make  matters  worse,  Georgia 
troops  had  also  been  called  out,  and  as  if  this  did  not 
make  the  situation  extreme  and  critical  enough,  the 
Georgia  guard  were  acting  independently  of  the  United 
States  and  the  Federal  troops.  They  refused  to  take 
orders  from  General  Wool,  and  thus  there  was  a  con- 
flict of  authority. 

On  June  7,  1836,  a  commission  had  been  appointed 
by  the  United  States  to  execute  the  treaty,  and,  amid 
all  the  bitterness  and  strife  in  the  Cherokee  country,  the 
work  of  appraising  went  steadily  on.  Georgia,  at  the 
same  time,  was  carrying  out  her  own  laws  and  policies, 
surveying  and  disposing  by  lotteries  of  the  Indian 
lands.  At  first  the  Indians  were  secured  (theoretically) 
in  the  lands  touched  by  their  improvements,  and  all 
others  were  thrown  open ;  then  they  were  limited  to  the 
occupancy  of  the  lots  on  which  they  actually  resided 
and  their  actual  improvements  adjoining.  If  there 
was  any  disposition  upon  the  part  of  the  courts  to  ad- 
minister justice,  they  were  thwarted  in  their  efforts  by 

23  Cong.  Doc.  315,  No.  120,  p.  629. 

24  Cong.  Doc.  315,  No.  120,  p.  635. 


4^  The  Cherokee  Indians 

the  legislature,  which  took  equity  jurisdiction  from 
them  in  Cherokee  cases.  The  actual  effects  produced 
by  the  methods  employed  among  the  Indians  may  be 
seen  in  the  case  of  John  Ross.  While  he  was  on  a  mis- 
sion to  Washington  he  was  dispossessed.  Upon  his 
return  home  he  found  a  stranger  in  his  house  and  his 
wife  and  children  driven  away — where,  he  could  only 
guess.  As  he  stood  meditating  upon  this  newest  calam- 
ity, recalling  the  happy  days  of  the  past,  his  vision 
wandered  over  his  own  loved  home,  his  no  more,  until 
his  eye  rested  upon  a  little  mound  of  earth  beneath 
the  spreading  branches  of  a  protecting  tree.  That  lit- 
tle mound  marked  the  grave  of  his  child.  But  away 
from  his  home  and  possessions,  breaking  the  tenderest 
ties  of  association  and  sentiment,  he  must  trudge,  be- 
cause, forsooth,  the  white  man  coveted  his  birthright.^ ^ 
And  what  was  the  character  of  the  lands  which  Geor- 
gia was  unceremoniously  seizing,  and  for  which  the 
United  States  was  offering  five  million  dollars  bonus  ?  ^^ 
The  Cherokee  territory  within  North  Carolina,  Tenne- 
see,  Alabama,  and  Georgia  was  estimated  to  contain 
about  ten  million  acres.  Within  the  territory  there 
T^ere  quarries  of  limestone  and  marble;  mines  of  iron, 
lead,  silver  and  gold,  and  forests  both  large  and  valu- 
able. Some  lots  of  forty  acres  embracing  gold  mines 
were  sold  for  thirty  thousand  dollars.  This  was  the 
nature  of  the  land  which  the  Cherokees  were  forced  to 
sell  at  what  was,  even  then,  a  paltry  sum,  considering 
the  extent  and  value  of  the  territory. 

25  Cong.  Doc.  Q92,  No.  286,  p.  10. 

26  It  will  be  noticed  the  five  million  was  not   free   and   clear, 
but  liable  to  certain  charges.     See  Treaty  of  New  Echota's  pro- 


The  Cherokee  Indians  4S 

In  the  midst  of  this  narrative  of  injustice,  hardship, 
and  persecution,  it  is  refreshing  to  read  of  even  a  trivial 
victory  gained  by  the  Cherokees,  especially  if  it  be  won 
not  by  sheer  force,  but  by  cleverness.  It  was  the  wish 
of  John  Ross  and  the  Cherokees  that  the  aid  of  their 
brethren  who  had  already  emigrated  west  should  be  en- 
listed upon  their  side,  and  that  the  nation,  east  and 
west,  should  present  a  united  front  of  opposition  to 
the  Treaty  of  New  Echota.  But  it  was  the  equally 
strong  determination  of  the  authorities  at  Washington 
to  prevent  the  consummation  of  any  such  plan.  There- 
fore, strict  orders  were  sent  from  Washington  to  Ar- 
kansas that  if  John  Ross  appeared  on  the  scene  incit- 
ing the  Indians  to  opposition  to  the  treaty  he  should  be 
arrested  at  once.  Ross,  however,  went  west  and  with 
admirable  shrewdness  quietly  stirred  up  the  Indians 
into  a  promise  of  opposition  to  the  treaty,  and  of  a 
delegation  which  should  go  to  Washington  and  protest 
against  it.  The  whole  matter  being  settled  to  his  satis- 
factipn  Ross  departed.  Then,  of  course,  everything 
came  to  light.  The  Government  realized  that  it  had 
been  outwitted,  that  Ross  had  accomplished  his  designs, 
eluded  its  meshes  and  escaped,  and  its  impotent  rage 
knew  no  bounds. ^^ 

Upon  the  election  of  Van  Buren  to  the  presidency  a 
new  attempt  was  made  by  the  Cherokee  delegation  in 
Washington  to  obtain  a  hearing.  President  Van  Buren 
did  receive  the  delegation,  and  with  marked  kindness  of 
manner,  but  he  nevertheless  informed  them  that  their 
efforts  were  vain,  for  nothing  could  be  done  for  them.^^ 
Ross  was  seeking  a  compromise  and  had  made  a  three- 

2T  Cong.  Doc.  315,  No.  120,  p.  774. 
28  Cong.  Doc.  315,  No.  120,  p.  843. 


44  The  Cherokee  Indians 

fold  request:  (1)  that  he  be  dealt  with;  (2)  that  there 
be  a  full  and  impartial  investigation  to  ascertain 
whether  or  not  the  treaty  had  been  really  authorized 
by  the  Cherokees ;  (3)  submission  of  the  same  to  the 
Cherokee  nation. ^^  In  reply  Secretary  of  War  Poin- 
sett wrote,  March  24,  1837,  saying  that  the  Treaty  of 
New  Echota  had  been  ratified  according  to  constitu- 
tional forms.  The  second  and  third  requests  of  Ross 
were  impossible,  but  that  "  any  measure  suggested  by 
you  will  receive  candid  examination  "  if  not  inconsistent 
with  the  treaty.^**  Another  proposition  made  by  the 
Cherokees,  and  rejected  by  the  United  States,  was  for 
a  cession  of  all  lands  in  Georgia,  except  what  should 
be  agreed  upon  as  furnishing  convenient  and  sufficient 
connection  with  the  residue  of  the  territories.^^  Before 
Van  Buren  had  been  in  office  very  long,  he  became  more 
reluctant  to  hold  intercourse  with  Ross.  His  course 
brought  more  protests  from  the  Cherokees.  The  Indi- 
ans had  also  been  holding  councils  and  appointing  or 
reappointing  delegations  to  go  to  Washington. 

But  it  was  by  no  means  the  Cherokees  only  who  made 
known  the  objections  to  the  Treaty  of  New  Echota. 
As  has  already  been  indicated,  there  had  been  opposition 
in  Congress  to  the  policy  pursued  by  the  Federal  Gov- 
ernment. In  1831  Henry  Clay  had  said  that  in  the 
negotiations  with  Great  Britain  culminating  in  the 
Treaty  of  Ghent,  that  power  had  desired  information 
concerning  America's  treatment  of  the  Indians,  and 
therefore  the  principles  of  it  had  been  explained.  The 
Indians   had  their  own   government,  lived  under   their 

29  Cong.  Doc.  315,  No.  120,  p.  797,  et  seq, 

30  Cong.  Doc.  325,  No.  99. 

81  Cong.  Doc.  325,  No.  99,  p.  40. 


The  Cherokee  Indians  45 

own  laws,  exempt  from  the  operations  of  the  laws  of 
the  United  States,  quietly .  possessed  their  own  lands 
under  no  other  limitations  than  that,  when  these  were 
sold,  they  must  be  sold  to  the  United  States.  This  ex- 
planation was  of  the  nature  of  an  assurance  to  England 
thai  such  a  policy  was  to  continue,  and,  hence,  Clay  re- 
garded the  treatment  accorded  the  Cherokees  as  not 
only  inherently  unjust,  but  also  a  moral  violation  of 
the  assurances  given  to  the  British  Government.^^  But 
after  the  conclusion  of  the  Treaty  of  New  Echota  the 
opposition  in  Congress  to  the  Administration's  Indian 
policy  developed  greater  intensity,  until  party  lines 
were  drawn  and  the  Whigs  were  prepared  to  appeal 
to  the  country  largely  on  that  issue.  The  debates  in 
the  Senate  and  House  on  the  Cherokee  question  showed 
a  bitterness  which  was  not  surpassed  even  by  the  acri- 
monious discussion  upon  slavery.  Webster  as  well  as 
Clay  championed  the  cause  of  the  Indians,  as  did 
Crockett  of  Tennessee,  whose  attitude  is  notable  be- 
cause he  represented  a  district  which  bordered  on  the 
Indian  country,  and  his  constituents  were  antagonistic 
to  the  Cherokees.  In  spite  of  this,  and  at  the  risk  of 
losing  popularity  and  committing  political  suicide,  he 
espoused  the  cause  of  the  persecuted  Indians.  Wise,  in 
a  sensational  speech,  compared  John  Ross  with  Geor- 
gia's leading  statesman,  Forsyth,  In  Intellect  and  moral 
honesty,  not  at  all  to  the  disparagement  of  the  former. ^^ 
So  heated  and  personal  did  the  debate  become. 

And  the  country  at  large  was  thoroughly  aroused. 
Protests  from  various  sections  were  sent  to  Congress. 
One  of  the  last  appeals  sent  by  the  Cherokees  deserves 

32  Cong.  Doc.  315,  No.  120,  p.  678. 

S3  Cong.  Globe,  9d  Sess.,  25th  Congress,  Jan.  2,  1838. 


46  The  Cherokee  Indians 

to  be  quoted  in  part.  It  was  sent  to  Congress  In  Feb- 
ruary, 1838.  The  immediate  occasion  of  it  was  a  com- 
munication sent  to  the  Cherokees  by  United  States  Com- 
missioners Kennedy  and  Wilson,  telHng  them  that  the 
treaty  was  to  be  enforced  and  that  they  were  being  mis- 
led by  John  Ross  and  his  friends.^*  The  protest  said 
that  no  crime  was  alleged  for  their  persecution.  The 
Government  had  spoken  of  deluded,  dangerous  error; 
"  '  duped  and  deluded  by  those  we  have  placed  implicit 
confidence  in.'  What  the  delusion.?  Delusion  to  be 
sensible  of  the  wrongs  we  suffer.?  Dangerous  error  to 
believe  that  the  great  nation,  whose  representatives  we 
now  approach,  will  never  knowingly  sanction  a  transac- 
tion originated  in  treachery  and  to  be  executed  only  by 
violence  and  oppression.?  Is  it  a  crime  to  confide  in  our 
chiefs.?  .  .  .  And  now,  in  the  presence  of  your 
august  assemblies,  and  in  the  presence  of  the  Supreme 
Judge  of  the  Universe,  most  solemnly  and  most  humbly 
do  we  ask:  are  we  for  these  causes  to  be  subjected  to 
the  indescribable  evils  which  are  designed  to  be  in- 
flicted upon  us .?  Is  our  country  to  be  made  the  scene  of 
the  horror  which  your  commissioners  will  not  paint? 

"  For  adhering  to  the  principles  on  which  your  great 
empire  is  founded,  and  which  have  advanced  it  to  its 
present  elevation  and  glory,  are  we  to  be  despoiled  of 
all  we  hold  dear  on  earth.?  Are  we  to  be  hunted  through 
the  mountains  like  wild  beasts,  and  our  women,  our 
children,  our  aged,  our  sick  to  be  dragged  from  their 
homes  like  culprits,  and  to  be  packed  on  board  of 
loathsome  boats  for  transportation  to  a  sickly  clime.? 

"  Already  we  are  thronged  with  armed  men ;  forts, 
camps,  and  military  posts  of  every  grade  occupy  our 
34  Cong.  Doc.  329,  No.  316. 


The  Cherokee  Indians  47 

whole  country.  With  us  it  is  a  season  of  alarm  and  ap- 
prehension. We  acknowledge  the  power  of  the  United 
States.  We  acknowledge  our  own  feebleness.  Our 
only  fortress  is  the  justice  of  our  cause.  Our  only  ap- 
peal on  earth  is  to  your  tribunal.  To  you,  then,  we 
look.  Before  your  honorable  bodies,  in  view  of  the  ap- 
palling circumstances  with  which  we  are  surrounded, 
relying  on  the  righteousness  of  our  cause  and  the  justice 
and  magnanimity  of  the  tribunal  to  which  we  appeal, 
we  do  solemnly  and  earnestly  protest  against  that 
spurious   instrument    (i.   e.,   Treaty   of   New   Echota). 

"  It  is  true  we  are  a  feeble  people,  and,  as  regards 
physical  power,  we  are  in  the  hands  of  the  United 
States;  but  we  have  not  forfeited  our  rights,  and  if 
we  fail  to  transmit  to  our  sons  the  freedom  we  have 
derived  from  our  fathers,  it  must  not  be  by  an  act  of 
suicide,  it  must  not  be  with  our  own  consent. 

"  With  trembling  solicitude  and  anxiety  we  most 
humbly  and  respectfully  ask,  will  you  hear  us?  Will 
you  extend  to  us  your  powerful  protection?  Will  you 
shield  us  from  the  horrors  of  the  threatened  storm.'* 
Will  you  sustain  the  hopes  we  have  rested  on  the  public 
faith,  the  honor,  the  justice  of  your  mighty  empire? 
We  commit  our  cause  to  your  favor  and  protection. 
And  your  memorialists,  as  in  duty  bound,  will  ever 
pray."  The  protest  is  signed  by  fifteen  thousand  six 
hundred  and  sixty-five  Cherokees.^^ 

As  the  time  for  removal  drew  near,  so  vehement  be- 
came the  protests,  and  to  such  a  degree  were  the  nation's 
sympathies  aroused  and  her  indignation  excited,  that 
the  Administration  began  to  feel  that  public  sentiment 
could  not  be  trifled  with.  Early  in  May  Van  Buren 
35  Cong.  Doc.  329,  No.  316. 


48  The  Cherokee  Indians 

seemed  willing  to  extend  the  time  for  removal  two 
years. ^^  News  of  this  contemplated  concession  brought 
a  vigorous  letter  from  Governor  Gilmer  of  Georgia  to 
Poinsett,  saying  that  if  the  President  ordered  that  the 
Indians  be  maintained  where  they  were  for  two  years 
longer,  a  collision  would  take  place  between  the  Georgia 
guards  and  the  United  States  troops. ^^  This  letter 
elicited  a  hasty  and  frightened  response  from  Poinsett, 
who  said  that  the  President  never  had  any  intention  of 
maintaining  the  Cherokees  in  Georgia  contrary  to  the 
wishes  of  the  authorities  of  the  State.  It  would  remove 
them  as  speedily  as  possible.  There  was  no  reason  for 
a  collision  between  Georgia's  militia  and  the  regular 
troops.^^ 

As  has  already  been  stated,  for  some  time  previous  to 
the  adoption  of  the  Treaty  of  New  Echota,  Cherokees 
were  being  urged  to  go  west.  As  many  as  would  con- 
sent were  removed  thither.  Of  these,  up  to  the  time  of 
the  treaty,  there  were  over  two  thousand.''^  After  the 
treaty  had  been  adopted  the  pressure  brought  to  bear 
upon  the  Indians  to  induce  them  to  remove  was  greatly 
increased.  As  a  result,  two  thousand  emigrated  between 
the  adoption  of  the  treaty  and  January,  1838,  leaving 
about  fourteen  thousand  in  the  East.*^  The  time  pre- 
scribed for  removal  by  the  treaty  was  the  spring  of 
1838.  And  promptly  General  Scott,  who  was  then  in 
command  of  the  troops,  began  the  work  of  removing 
the  unwilling  Indians.  Much  distress  resulted  from 
the  herding  of  the  Indians  in  tents,  separation  of 
families,  sickness,  and  the  many  hardships  and  dangers 

36  Cong.  Doc.  330,  No.  376.  37  Cong.  Doc.  330,  No.  421. 

38  Cong.   Doc.   330,   No.   431.       39  Cong.  Doc.  283,  No.  403. 
40  Cong.  Doc.  325,  No.  82,  p.  1. 


The  Cherokee  Indians  49 

inevitable  in  such  an  undertaking.  So  severe  was  the 
suffering  that  General  Scott,  from  motives  of  hu- 
manity, decided  to  suspend  further  work  of  removal 
until  Autumn.  In  the  interim  a  partial  agreement  was 
arrived  at  by  the  Indians  and  the  Administration.  The 
Indians  were  to  be  permitted  to  remove  themselves 
under  the  charge  of  a  committee  of  their  own  appoint- 
ing. This,  it  was  hoped,  wuuld  mitigate  some  of  the 
trials  of  the  difficult  journey.*^  On  August  1,  the 
Cherokees  passed  resolutions  saying  that  submission  to 
the  United  States  and  the  acceptance  of  money  from 
the  Government  were  not  to  be  construed  as  an  ad- 
mission of  the  validity  of  the  Treaty  of  New  Echota,  nor 
as  a  hind.'ance  to  the  collection  of  an  indemnity  for 
the  seizure  of  their  land.  With  the  coming  of  fall,  the 
process  of  removal  was  continued,  and  on  December  4, 
1838,  the  last  party  of  Cherokees  left  their  pastern 
rendezvous  for  the  West,  under  John  Ross,  and  the 
removal  was  completed.*^  It  took  several  months  to 
complete  the  removal;  the  distance  was  about  seven 
hundred  miles,  and  about  four  thousand  died  on  the  way. 
With  the  additional  statement  that  many  of  the  North 
Carolina  Indians  most  averse  to  migrating  steadily  re- 
fused to  be  bought,  cajoled,  or  driven  into  going  West, 
and  when  the  crisis  came,  took  refuge  in  the  mountains 
and  there  remained  until  the  danger  was  past,  this  chap- 
ter of  oppressions,  impotent  protests,  and  enforced 
wrongs  may  be  brought  to  a  close. 

41  Cong.   Doc.   369,   No.   129,   p.   35. 

42  Cong.  Doc.  348,  No.  224. 


CHAPTER    V 

DOMESTIC  STRIFE 

r  I  iHE  chapter  of  oppressions  from  without  has  its 
■^  sequel  in  a  chapter  of  intestine  strife.  In  the 
Cherokee  nation  immediately  subsequent  to  the  great  re- 
moval, there  were  three  parties.  There  was  the  Ross 
party,  headed  by  John  Ross,  which  comprised  about 
two-thirds  of  the  entire  nation ;  then  there  was  the 
Treaty  party,  consisting  of  those  who  had  been  favorable 
to  a  treaty  and  had  negotiated  the  treaty  of  New  Echota. 
Their  numbers  were  inconsiderable,  but  they  were  hated 
by  the  Ross  party  as  the  authors  of  all  their  misfor- 
tunes. Finally  there  was  the  party  of  the  Old  Set- 
tlers or  Western  Cherokees — those  who  had  migrated 
prior  to  the  negotiation  of  the  Treaty  of  New  Echota. 
These  last  saw  with  jealous  eyes  the  settlement  in  their 
country  of  a  people  who  outnumbered  them,  kindred 
though  they  were.  The  initial  undertaking  must  nec- 
essarily be  to  seek  to  reach  an  agreement  that  would 
reunite  the  people  actually  as  well  as  formally.  A 
council  was  held  in  June,  1839,  but  nothing  was  ac- 
compHshed,  as  the  chiefs  of  the  Old  Settlers  desired  the 
newcomers  to  acknowledge  the  existing  government 
and  to  settle  under  it,  for  the  time  at  least  having  no 
share  in  it.  Being  in  the  majority,  the  Cherokees  from 
the  East  very  naturally  declined  to  accede  to  any  such 
arrangement. 


The  Cherokee  Indians  51 

The  Ross  party  took  the  lead  in  calHng  another 
council  to  meet  in  July  of  the  same  year.  The  council 
was  attended  by  the  Ross  people  and  some  Old  Settlers, 
but  many  of  the  latter  stood  aloof,  believing  that  the 
object  of  Ross  was  not  to  bring  about  union,  but  to 
ascertain  the  will  of  the  majority  and  force  that  upon 
the  Western  Cherokees.  An  act  of  union  was  passed  on 
July  12,^  by  the  council,  but  it  was  repudiated  by  the 
chiefs  of  the  Old  Settlers.  As  a  consequence,  two  rival 
governments  existed,  each  claiming  to  be  the  one  lawful 
government  of  the  Cherokee  nation.  The  Old  Settlers 
set  up  a  claim  not  only  to  the  government,  but  to  the 
sole  ownership  of  the  soil.  They  contended  that  the 
treaties  made  with  them,  and  the  terms  of  the  treaties, 
were  such  as  to  sustain  them  in  their  claim.  The 
Treaty  of  1819  considered  the  Western  Cherokees  as 
entitled  to  one-third  of  the  annuities.  The  Treaty  of 
1828  was  made  with  the  Western  Cherokees.  By  it  an 
exchange  of  their  lands  for  others  more  suitable  was 
effected,  with  the  guarantee  that  they  should  be  and 
remain  theirs  forever — a  home.  In  all  future  time  they 
should  never  be  embarrassed  by  having  extended  around 
them  the  lines,  or  having  placed  over  them  the  jurisdic- 
tion, of  a  Territory  or  State.  Boundaries  were  de- 
scribed and  provisions  made  for  such  Eastern  Cherokees 
as  might  wish  to  join  them.  These  things,  it  was  urged, 
were  proof  that  the  Western  Cherokees  had  been  recog- 
nized as  a  nation  separate  from  the  Cherokees  in  the 
East.^  The  Western  Cherokees  illustrated  their  point 
of  view  by  remarking  that  a  Frenchman  might  emigrate 

1  Cong.  Doc.  359,  No.  347,  p.  18. 

2  Cong.  Doc.  359,  No.  347,  pp.  55  and  56. 


52  The  Cherokee  Indians 

to  England,  if  he  so  desired,  but  could  the  whole  French 
nation  decamp,  go  to  England,  and  displace  the  British 
Government  by  their  own?  Those  of  the  delegation 
from  the  West  who  had  signed  the  Treaty  of  New 
Echota  had  done  so  only  by  varying  from  their  instruc- 
tions, and,  as  a  matter  of  fact,  the  Old  Settlers  had  met 
on  the  first  of  August,  1838 — prior  to  the  emigration  of 
the  Ross  contingent — and  had  resolved  that  their  sov- 
ereignty was  in  full  force  and  should  remain  so  in  per- 
petuity.^ The  Indian  Department  held  a  different  view. 
Their  understanding  was  that  the  Western  Cherokees 
formed  only  contingently  a  separate  community  from 
the  Eastern  Cherokees.  The  treaties  made  in  1817 
and  in  1819  were  made  with  the  whole  tribe.  The 
Treaty  of  1828,  it  was  asserted,  put  an  end  to  all  pos- 
sible controversy  on  the  subject.  The  preamble  recited 
the  desire  of  the  Government  to  secure  the  Cherokee 
Indians  a  permanent  home — a  home  for  those  in  the 
West  and  for  those  desiring  to  join  them  by  emigration. 
Seven  million  acres  w^ere  appropriated  for  this  per- 
manent home — a  territory  preposterously  large  if  in- 
tended for  the  Western  Cherokees  only.*  But  the  latter, 
on  the  principles  they  enunciated,  declared  the  act  of 
union  nuU  and  void,  and,  in  October,  1839,  held  a 
council  and  elected  chiefs.  They  proposed  as  a  set- 
tlement of  the  difficulties  a  division  of  the  land  and  the 
annuities  between  the  Old  Settlers  and  the  new  arrivals. 
But  these  disputes  about  government  and  ownership 
were  not  the  only  reasons  for  apprehension  concerning 
Cherokee  affairs.  In  the  interim  between  the  two  coun- 
cils, meeting  in  June  and  July,  1839,  respectively,  there 
occurred  an  event  which  could  not  but  prove  to  be  a 
3  Cong.  Doc.  443,  No.  235.    4  Cong.  Doc.  359,  No.  347,  p.  58. 


Major  Ridge 

Born  about  1771,  at  Highwassie.  His  Indian  name  was  Kah- 
nung-da-tla-geh,  meaning  "  man  who  walks  on  the  mountain's 
top."     From  a  lithograph  in  colors,  published  about  1840. 


The  Cherokee  Indians  53 

serious  detriment  to  a  speedy  or  peaceable  termination 
of  the  turmoil  by  which  the  Cherokee  country  was  pos- 
sessed. This  event  was  the  murder  of  John  and  Major 
Ridge  and  Elias  Boudinot,  the  leading  spirits  of  the 
Treaty  part3^  Party  feeling  had  run  high  before  the 
conclusion  of  the  Treaty  of  New  Echota.  In  1829  the 
Cherokees  had  enacted  a  law  which  inflicted  the  death- 
penalty  upon  any  unauthorized  persons  who  should  sell 
land.^  If  one  accused  of  so  doing  should  fail  to  de- 
liver himself  up  for  trial  he  should  be  considered  an 
outlaw  and  could  be  shot  on  sight.  After  the  New 
Echota  council,  as  information  about  the  nefarious 
transaction  spread  among  the  Indians  hostile  to  re- 
moval, they  became  incensed  against  those  who  had 
been  instrumental  in  the  accomplishment  of  the  treaty 
and  regarded  them  as  traitors.  Vengeance  was  delayed, 
but  came  at  last.  When  the  news  of  the  murder  was 
learned,  many  of  the  adherents  of  Ridge  and  many  of 
the  Old  Settlers  fled  in  terror  to  Fort  Gibson.  Natur- 
ally great  excitement  prevailed.  At  the  council  in  July 
which  met  shortly  after  the  murders  had  been  com- 
mitted a  decree  was  passed  making  members  of  the 
Treaty  party  ineligible  to  office  for  five  years.  An  act 
of  amnesty  toward  those  exposed  by  their  acts  to  the 
penalty  of  outlawry,  i.  e.,  members  of  the  Treaty  party, 
was  passed,  but  in  order  to  avail  themselves  of  its 
pardon,  they  were  to  retract  or  disavow  all  threats 
made  against  any  person  or  party,  and  to  give  satis- 
factory assurances  that  they  would  keep  the  peace. 
Those  who  failed  to  present  themselves  were  subse- 
quently outlawed.  The  council  of  July  also  passed  a 
decree  of  oblivion,  the  terms  of  which  enabled  those 
5  Niles'   Register,  Nc.  37,  p.  235. 


54  The  Cherokee  Indians 

who  had  committed  crimes  in  the  past,  including  the 
perpetrators  of  the  murder,  to  escape  punishment.* 

After  the  murder  of  the  Ridges  and  Boudinot  the 
Treaty  party  appealed  to  the  Washington  Government 
for  redress.  The  President  felt  himself  called  upon  to 
espouse  the  cause  of  those  who  had  done  the  bidding 
of  the  Federal  Government  in  making  a  treaty,  and  had 
done  it  despite  the  overwhelming  public  sentiment  in  the 
Cherokee  nation  against  such  a  proceeding.  Thus,  at 
the  time  when  a  judicial  and  tactful  attitude  was  abso- 
lutely essential,  the  Government  was  precluded  from 
taking  it,  because  of  the  obligation  to  the  Ridge  party. 
The  President  decided  to  interfere  and  demand  that  the 
murderers  be  turned  over  to  the  Federal  Government 
for  punishment.  Ross  resented  the  interference,"^  claim- 
ing that  the  Cherokees  had  a  government  capable  of 
dealing  with  all  internal  affairs.  The  United  States 
authorities  themselves  attempted  to  find  the  murderers. 
General  Arbuckle,  in  command  of  the  Federal  troops 
In  the  Cherokee  neighborhood,  had  asserted  in  justifica- 
tion the  cbligatlon  of  the  Government  to  protect  the 
(  hcrokces  from  domestic  strife.  Replying  to  this, 
Ross  asked  If  the  peace  and  friendship  between  the 
United  States  and  the  Cherokees,  promised  by  the 
Treaty  of  New  Echota,  was  to  be  confined  to  one  one- 
hundredth  part  of  the  nation,^  L  e.,  the  Treaty  party. 
Secretary  of  War  Poinsett  refused  to  receive  a  Chero- 
kee delegation  with  John  Ross,  when  such  a  delegation 
went  to  Washington  to  seek  an  adjustment  of  difficult- 
ies. Poinsett  grew  violent  in  his  denunciation  of  John 
Ross,  saying  that  it  was  believed  that  Ross  was  the  in- 

«  Cong.  Doc.  443,  No.  234,  pp.  26-27. 

T  Cong.  Doc.  365,  No.  1^9,  p.  107.     «  Cong.  Doc.  359,  No.  34T. 


The  Cherokee  Indians  55 

stigator  of  the  murders,  and  that  he  was  admittedly  the 
protector  of  the  murderers.  The  delegation  declined  an 
audience  without  Ross;  and  demanded  evidence  for 
the  accusations  made  against  their  leader.  Poinsett,  in 
reply,  told  them  that  evidence  would  be  furnished  in  the 
course  of  the  investigation.^  But  in  April,  1840,  John 
Ross  told  a  Congressional  committee  that  Poinsett, 
when  pinned  down  to  it,  admitted  that  there  was  no 
investigation  to  ascertain  the  truth  of  the  charges 
against  Ross,  and,  furthermore,  that  none  was  neces- 
sary as  long  as  Ross  did  not  give  up  the  murderers.^^ 
Ross  and  Coody  offered  a  measure  of  excuse  for  the 
murderers  on  the  ground  that  the  Ridges  and  Boudinot 
were  regarded  as  traitors  by  the  Indians,  and  that  an 
old  law  ^^  held  in  peculiar  reverence  by  the  people 
prompted  them  to  the  murder.^"  Poinsett  was  more 
angry  than  ever  at  what  he  termed  an  attempt  to 
justify  the  murders,  and  on  March  7,  1840,  he  ordered 
General  Arbuckle  to  bring  about  a  new  constitution, 
securing  rights  to  all  Indians,  the  "  abolition  of  all 
such  cruel  and  savage  edicts  "  as  that  under  which 
Ridge  and  Boudinot  were  murdered,  conformity  to  the 
United  States  Constitution  and  the  exclusion  from 
office  of  John  Ross  and  William  S.  Coody. ^^  Im- 
mediately there  was  a  protest  from  the  Cherokees,^* 
and  Cood}^  said  that  he  did  not  justify  the  murders,  he 
merely  explained  them.^^     It  should  also  be  noted  that 

9  Cong.  Doc.  359,  No.  347,  p.  21  et  seq. 

10  Cong.  Doc.  368,  No.  222. 

11  See  Page  52. 

12  Cong.  Doc.  366,  No.   188. 

13  Cong.   Doc.  359,  No.  347,  p.   2. 

14  Cong   Doc.   368,   No.   222. 

15  Cong.  Doc.  368,  No.  222,  p.  19. 


56  The  Cherokee  Indians 

Mr.  Stokes,  United  States  agent  for  the  Cherokees,  had 
written  to  Secretary  Poinsett  January  22,  1840 — six 
weeks  previous  to  Poinsett's  orders  to  Arbuckle — that 
there  was  nothing  in  the  new  Cherokee  constitution  to 
encourage  murder,  and  as  a  result  of  conversations  with 
five  or  six  Old  Settlers — not  Ross  party  men — he 
judged  that  the  murders  were  not  sanctioned  or  auth- 
orized by  the  chiefs  and  principal  men/^  The  decrees 
of  outlawry,  to  which  also  Poinsett  took  exception,  John 
Ross  stoutly  defended  on  the  ground  that  they  were  not 
measures  of  persecution  as  alleged,  but  of  protection 
to  the  Treaty  men.  The  Indians  were  so  incensed  at 
them,  Ross  said,  that  such  a  measure  was  the  only  way 
to  save  them  from  vengeance.  And  he  likewise  upheld 
the  acts  of  Amnesty  and  Oblivion  by  which  the  mur- 
derers had  gained  immunity  from  prosecution  as  being 
made  necessary  by  the  turbulent  state  of  the  country 
which  rendered  it  essential  that  steps  should  be  taken 
to  obliterate  old  scores  and  to  promote  immediate 
peace.  To  demonstrate  the  soundness  of  his  position 
he  referred  to  the  fact  that  the  committee  that  con- 
sidered these  measures  was  presided  over  by  Guess, 
whose  own  son  had  been  murdered,  but  who  favored  the 
legislation  from  motives  of  patriotism. ^^  One  other 
event  which  preceded  the  issuance  of  the  orders  to  Gen- 
eral Arbuckle  is  of  sufficient  importance  to  be  recorded. 
In  January,  1840,  another  council  assembled  at  Tahle- 
quah  and  reaffirmed  the  act  of  union  and  the  constitu- 
tion adopted  the  previous  summer.^^  At  this  council 
the  decree  of  ineligibility  of  Treaty  men  to  office  was 

16  Cong.  Doc.  359,  No.  347,  p.  51. 

17  Cong.  Doc.  368,  No.  222,  p.  5. 

18  Cong.  Doc.  359,  No.  347,  p.  44. 


The  Cherokee  Indians  67 

withdrawn/^  An  invitation  to  attend  this  council  was 
extended  to  all,  and  the  promise  was  made  that  none 
who  attended  should  be  molested.  The  Old  Settlers, 
however,  viewed  the  invitation  askance,  and  no  great 
number  attended. 

In  April,  1840,  in  his  communication  to  the  Congres- 
sional committee  to  which  reference  has  already  been 
made,^^  John  Ross  gave  his  version  of  the  lack  of  har- 
mony between  the  Old  Settlers  and  his  own  party.  In 
describing  the  Western  Cherokees'  form  of  government 
prior  to  the  emigration  of  the  Eastern  Cherokees,  he 
said  there  were  three  chiefs  elected  for  four  years  by 
the  National  Council,  which  was  itself  elected  every  two 
years.  This  Council  ought  to  have  been  elected  in 
August,  1839.  One  chief  had  died;  one  had  resigned. 
There  was,  thus,  one  legal  chief  in  power;  and  he  was 
John  Looney.  After  the  arrival  of  the  Cherokees  from 
the  East  he  called  an  informal  meeting  of  the  National 
Council  of  the  Western  Cherokees.  Eight  met  and 
elected  two  other  chiefs.  In  August  no  election  was 
held.  But  that  month  the  Old  Settlers — a  certain 
number  of  them — deposed  the  two  chiefs  they  elected, 
and  then  effected  a  union  with  the  Eastern  Cherokees. 
These  chiefs,  whom  Ross  regarded  as  unauthorized  agi- 
tators, called,  in  October,  a  public  meeting  which  was 
formed  into  a  council  and  elected  three  chiefs,  and 
declared  the  act  of  union  null  and  void.  This  council 
Ross  declared  would  have  amounted  to  nothing  except 
for  the  recognition  and  prominence  given  to  it  by  Gen- 
eral Arbuckle.^^  In  a  word,  then,  Ross  claimed  that  the 
Western  Cherokees  were,  for  the  most  part,  favorable  to 

19  Cong.  Doc.  365,  No.  129,  p.  21. 

20  See  page  55.  21  Cong.  Doc.  368,  No.  222. 


58  The  Cheroke     Indians 

him;  that  the  government  established  at  the  October 
council  was  not  only  illegal,  but  the  government  of  a 
minority  of  the  Western  Cherokees  and  existed  only  be- 
cause of  the  partisan  support  of  Arbuckle.  The  Old 
Settlers  claimed  that  the  majority  of  the  Western  Chero- 
kees were  with  them,  and  that  their  government  alone 
had  the  right  to  exist.  Both  factions  had  sent  delega- 
tions to  Washington,  and  instructions  had  been  for- 
warded to  Arbuckle  to  overthrow  both  governments  and 
estabhsh  a  third. 

This  was  the  state  of  affairs  when  President  Harri- 
son was  inaugurated  and  when,  shortly  afterward,  he 
died  and  was  succeeded  by  Tyler.  The  Cherokee  ques- 
tion had  for  years  been  before  the  public,  and  as  party 
lines  had  more  than  once  been  drawn  in  regard  to  it, 
Tyler  had  the  opportunity  of  making  political  capital 
out  of  it.  And  he  was  certainly  justified  in  assuming  a 
less  uncompromising  attitude  than  that  of  his  predeces- 
sor toward  those  Cherokees  who  had  been  driven  all  but 
at  the  point  of  United  States  bayonets  from  their 
ancestral  domains  to  the  West.  In  September,  1841, 
Tyler  wrote  the  Ross  delegation,  promising  that  a 
treaty  would  be  negotiated  to  settle  the  various  dis- 
putes and  claims,  and  expressing  his  regret  for  past 
injustice  and  his  assurance  that  there  should  be  no  more 
if  he  could  prevent  it.^" 

In  the  spring  of  1842  Stand  Watie,  a  member  of  the 
Treaty  party,  murdered  James  Foreman,  one  of  the 
most  prominent  men  of  the  Ross  party,  in  revenge  for 
the  murder  of  the  Ridges  and  Boudinot,  and  the  ex- 
citement which  had,  in  a  measure,  been  allayed  was 
once  more  at  fever  heat.  This  was  but  the  beginning. 
22  Cong.  Doc.  411,  No.  1098,  p.  71. 


The  Cherokee  Indians  69 

For  a  year  there  was  comparative  quiet  in  the  Cherokee 
country,  but  in  the  summer  of  1843  Jacob  and  John 
West  were  suddenly  arrested  and  brought  to  trial  on 
the  charge  of  conspiracy  to  overthrow  the  Ross  gov- 
ernment. It  was  alleged  that  the  election  papers  of  one 
district  had  been  destroyed,  one  man  had  been  murdered 
and  another  had  been  injured.  A  certain  James  Starr, 
a  member  of  the  Treaty  party,  was  thought  to  be  the 
instigator  of  the  conspiracy,  and  the  Wests  were  ar- 
rested as  accessories.  In  the  midst  of  their  trial  an  at- 
tempt was  made  to  rescue  them,  but  it  failed.  This 
was  but  the  prelude  to  a  season  of  crime  and  lawless- 
ness. Horse-stealing,  robbery,  burning,  and  murder 
followed  one  another  in  quick  succession  until  once  more 
the  country  was  thoroughly  alarmed."^ 

At  about  this  time  light  was  shed  upon  the  troubles 
of  the  Cherokees  from  an  authoritative  source.  A 
board  of  inquiry  was  appointed  by  President  Tyler  to 
investigate  the  disturbances  in  the  Cherokee  nation  and 
to  consider  the  grievances  of  the  various  factions.  The 
board  consisted  of  Brigadier  General  R.  Jones,  Lieu- 
tenant Colonel  R.  Mason,  and  P.  M.  Butler,  Esq., 
Cherokee  agent. ^*  The  thoroughness  of  their  investi- 
gation, the  lucidity  of  their  report,  and  the  personnel 
of  the  board — all  men  of  high  standing — preclude  the 
idea  of  a  partial  investigation  or  a  report  determined 
by  partisan  bias.  To  show  that  there  was  ample  op- 
portunity for  the  Old  Settlers  and  Treaty  party  to 
present  their  grievances,  as  well  as  for  the  Ross  party, 
the  committee  reported  that  on  December  4,  5,  6,  1844, 

23  Cong.  Doc.  474,  No.  298,  p.   162. 

24  Cong.  Doc.  476,  No.  331,  p.  20. 


60  The  Cherokee  Indians 

a  council  of  the  Cherokees  met  the  commission  near 
Fort  Gibson.  There  was  an  attendance  of  485,  of 
whom  286  were  Old  Settlers,  and  195  of  the  Treaty 
party.  The  council  reconvened  at  a  later  date,  and 
there  were  908  present;  546  Old  Settlers  and  362 
Treaty  men. 

In  their  findings  the  commission  said  that  the  act  of 
union  of  1839  was  voted  by  a  minority  of  the  Western 
Cherokees.  But,  under  instructions  from  the  War  De- 
partment, General  Arbuckle  called  a  meeting  the  fol- 
lowing year,  and  on  June  26,  1840,  a  second  act  of 
union  was  passed.  A  committee  of  the  Western  Chero- 
kees attended  and  deliberated,  and  were  regarded  at  the 
time  as  authorized  agents,  both  by  the  Eastern  Chero- 
kees and  by  General  Arbuckle.  John  Rogers,  chief  of 
the  Western  Cherokees,  although  not  personally  in- 
clined toward  union,  nominated  for  one  of  the  head  men 
under  the  terms  of  the  compact,  but  before  it  was 
signed,  Andrew  Vann  of  his  own  party,  and  also  gave 
a  toast,  "  What  has  been  done  this  day,  may  it  never  be 
undone."  The  stipulations  made  in  regard  to  office 
were  at  once  carried  out,  and  many  of  those  who  were 
now  denying  the  validity  of  the  compact  had  taken 
office  under  it,  and,  of  course,  had  taken  also  the 
required  oath.  Rogers  and  others  had  received  money 
from  the  new  government  for  claims  under  the  old 
government.  The  proceedings  had  never  been  referred 
back  to  the  Old  Cherokees,  nor  did  there  seem  to  have 
been  any  intention  of  such  reference.  The  parties 
who  were  complaining  before  the  commission  had  ac- 
quiesced quietly  in  the  new  government  which  went 
into,  and  long  continued  in,  operation.     The  committee 


The  Cherokee  Indians  61 

of  twelve  who  had  signed  the  act  of  union  now,  with  one 
exception,  denied  their  authority  for  so  doing,  and  seven 
of  the  twelve  had  been  chosen  with  others  by  the  same 
party  on  December  6,  to  present  their  complaints  be- 
fore the  commission.  It  would  seem  a  strange  thing  to 
appoint  a  second  time  such  agents  who  had  shown 
themselves  faithless  and  had  acted  without  authority. 
These  deputies  of  the  Western  Cherokees  claimed  that 
they  had  signed  the  compact  on  the  basis  of  promises 
never  realized.  The  commission  reported  that  the 
promises  in  regard  to  office  had  been  kept,  for  at  the 
succeeding  election  party  lines  seemed  obliterated  and  the 
Western  Cherokees  received  the  majority  of  offices,  and 
that  the  promises  in  regard  to  money  must  necessarily 
have  been  hypothetical,  depending  largely  upon  the  deci- 
sion of  the  United  States.  The  commission  drew  the 
attention  of  the  Federal  Government  to  the  fifteenth 
article  of  the  Treaty  of  New  Echota,  and  remarked  that 
upon  the  subject  of  per  capita  division  of  money  due,  all 
parties  of  the  Indians  stood  alike.  The  board  further 
reported  that  the  complaints  of  oppression  by  the 
Ross  party  were  unfounded.  There  was  great  danger 
to  life  from  bandit  half-breeds  who  were  not  of  the 
dominant  party.  These  made  stealthy  incursions,  steal- 
ing and  burning.  There  was  no  discontent  among  the 
mass  of  the  people  with  the  new  government. ^^ 

After  this  investigation  one  would  think  that  suffi- 
cient time  had  been  given  to  discussion,  and  that  the 
time  for  action  had  arrived.  If  the  United  States 
authorities  had  at  once  fully  recognized  and  acknowl- 
edged the  Ross  government  as  the  only  legitimate 
25  Cong.  Doc.  457,  No.  140. 


62  The  Cherokee  Indians 

one,  and  had  discountenanced  factional  attempts  to 
overthrow  it,  a  disgraceful  page  of  Cherokee  history 
probably  never  would  have  been  written.  But  no  such 
course  was  pursued.  Instead  Commissioner  Medill 
sent  to  President  Polk,  who  had  succeeded  Tyler,  a 
communication  which,  after  the  clear  and  illuminating 
report  of  the  commission,  is  more  than  disappointing. 
In  it  Medill  showed  a  factional  spirit,  in  all  things 
championing  the  cause  of  the  Old  Settlers,  and  saying 
that  the  act  of  union  was  of  no  binding  force.  In 
accordance  with  MedilPs  suggestion  Polk  recommended 
in  his  message  to  Congress  a  separation  of  the  two 
parties  in  the  nation,  both  in  territory  and  government, 
and  the  extension  of  the  United  States  laws  for  mur- 
der over  the  Indians.'"^  This  project  of  separation 
was  not  put  into  effect,  but  served  to  keep  alive  the 
feud  among  the  Cherokees  and  to  resuscitate  the  hope 
among  the  Old  Settlers  that  the  United  States  would 
interfere  in  their  behalf. 

In  November,  1845,  an  attempt  was  made  by  a  party 
of  Cherokees  in  disguise  to  murder  Meigs,  a  connection 
of  John  Ross.  Failing  in  this,  Meigs's  house  was  fired. 
Shortly  afterwards  the  bodies  of  two  obscure  Cherokees 
were  found  bearing  unmistakable  evidences  of  their  hav- 
ing been  murdered.  It  was  conjectured  that  they  had 
met  the  assailants  of  Meigs  and  had  been  killed  by  them, 
either  that  the  latter's  designs  upon  him  might  not 
be  frustrated,  or  for  fear  of  a  betrayal  of  their  identity. 
The  Starrs  were  at  once  suspected  of  the  outrage,  as 
it  was  believed  that  they  had  long  been  instigators  of 
revolt  and  crime.  Two  of  the  Starrs,  young  men,  had 
been  outlawed  by  the  Ross  government,  and  a  price 
26  Cong.  Doc.   474,   No.   298. 


The  Cherokee  Indians  63 

had  been  set  upon  their  heads,  as  they  were  known  to 
be  desperate  characters. ^^  Furious  at  the  outrages 
committed,  an  armed  band  of  mounted  men  swooped 
down  upon  James  Starr  and  shot  him  dead  and 
wounded  his  son,  a  mere  child.  Before  they  finished 
their  work  they  also  wounded  Washington  Starr,  and 
killed  Suel  Rider,  who  was  also  suspected  of  being  in- 
volved in  the  plots  of  one  of  which  the  attack  on  Meigs 
was  the  result.^^ 

Lieutenant  Nelson  reported  that  the  most  intelligent 
Treaty  man  he  met  believed  that  the  vengeance  which 
had  summarily  called  Starr  and  Rider  to  account  was 
aimed  only  at  the  Starrs  and  their  confederates.^^  In 
real  or  feigned  terror,  however,  a  number  of  the 
Treaty  party  fled  from  the  Indian  country  for  refuge 
into  Arkansas  where  they  would  be  under  exclusively 
Federal  jurisdiction.  Then  General  Arbuckle  became 
involved  in  an  altercation  with  the  Ross  government, 
accusing  Ross  of  having  sanctioned  the  murder  of 
Starr  and  of  having  a  design  to  exterminate  his  polit- 
ical foes.  Arbuckle  reported  to  Washington  that  the 
Light  Horse  had  murdered  Starr.  In  reply  it  was  said 
by  the  adherents  of  Ross  that  the  attack  on  Meigs  was 
made  by  the  banditti  referred  to  by  the  board  of  in- 
quiry, and  that  Starr  was  believed  to  have  aided  them. 
Acting  Chief  Lowry  stated  that  the  terms  of  the  Light 
Horse  had  expired  and  there  was  none  at  the  time  of 
the  killing  of  Starr.^^  The  Light  Horse  were  the  official 
police  and  had  been  organized  originally  in  1808  to  pre- 

27  Cong.  Doc.  483,  No.  92. 

28  Cong.  Doc.  483,  No.  92,  p.  37. 

29  Cong.  Doc.  483,  No.  92,  p.  35. 

30  Cong.  Doc.  474,  No.  298,  p.  170. 


64  The  Cherokee  Indians 

vent  horse-stealing.^^  It  was  vigorously  denied  that 
the  officials  had  planned  or  sanctioned  lawlessness  or 
murder.  The  Cherokee  Advocate  had  not  justified 
the  murders,  but  the  Ross  organ  had  taken  the  ground 
that  extreme  provocation  produced  extreme  measures 
of  retaliation,  and  that  the  country  was  well  rid  of 
Starr.^^  Meantime  the  fugitives  of  the  Treaty  party 
and  Old  Settlers  had  been  followed  by  a  determined 
band  of  armed  men.  Major  M'Kissick,  Cherokee 
agent,  tried  in  vain  to  persuade  the  latter  to  disperse. 
At  his  request  Lowry  undertook  to  gain  their  consent  to 
disband,  and  succeeded,  and  they  returned  in  peace  to 
their  homes.  Shortly  after  this  episode  some  forty 
or  fifty  Treaty  Cherokees  took  refuge  in  old  Fort 
Wayne,  claiming  they  met  only  defensively.  But  im- 
mediately fifty  or  sixty  of  those  who  had  previously 
assembled  menacing  the  Treaty  men  who  had  fled,  re- 
assembled on  the  mountain  near  Evansville,  excusing 
their  conduct  on  the  ground  that  their  enemies  had 
met  in  Fort  Wayne  and  were  meditating  an  attack 
upon  them.  The  party  on  the  mountain  did  not  hesi- 
tate to  appropriate  the  cattle  and  hogs  of  the  fugi- 
tives for  the  purpose  of  subsistence  during  their  period 
of  camp  life.  But  nothing  serious  occurred  and  they 
soon  dispersed  again.^^  General  Arbuckle  had  opposed 
the  Ross  party  and  had  received  orders  from  Wash- 
ington to  protect  the  weaker  party. ^*  But  Captain 
Boone,  who  had  been  stationed  at  the  line,  said,  De- 
cember 10,  1845,  "  There  is  much  to  be  feared  from 

31  State  Papers,  Ind.  AflF.,  vol.  2,  p.  283. 

32  Cong.  Doc.  483,  No.  92,  pp.  37  and  Q5. 

33  Cong.   Doc.  483,   No.   92. 

34  Cong.  Doc.  474,  No.  298,  p.  187. 


The  Cherokee  Indians  65 

the  Old  Settlers  and  Treaty  party."  He  had  heard 
that  Stand  Watie  was  organizing  the  Fort  Wayne 
refugees   for  an  attack. ^^ 

These  events  were  the  beginning  of  a  veritable 
"  reign  of  terror "  among  the  Cherokees.  Early  in 
the  following  spring  Stand,  a  Ross  adherent,  was  mur- 
dered by  Faugh.  Faugh  was  tried  and  convicted,  but  it 
was  believed  that  the  Starrs  were  the  actual  principals 
in  the  crime. ^^  It  was  thought  that  the  motive  was 
revenge  for  the  killing  of  James  Starr.  This  murder 
was  followed  by  that  of  Cornskill,  a  Ross  man.  Six 
days  later  Turner,  a  Treaty  man,  was  killed.  In  No- 
vember Ellis  Dick  and  Billy  Starr  were  wounded. 
Arbuckle  took  the  Starrs  and  refused  to  surrender  them 
until  the  murderers  of  James  Starr  should  be  pun- 
ished. Next  Jimmy  and  Tom  Starr  murdered  two  Ross 
men  and  so  it  w^ent  on.  Agent  M'Kissick  reported 
thirty-four  murders  within  a  year,  but  added  that 
twelve  of  them  were  not  political.'' 

The  picture  of  the  troubles  of  the  Cherokees  would 
be  incomplete  were  the  background  of  the  attitude 
of  General  Arbuckle  entirely  wanting.  General  Ar- 
buckle throughout  the  period  acted,  not  as  a  judge,  but 
as  an  advocate.  From  beginning  to  end  he  con- 
sistently opposed  John  Ross  and  his  party  in  every 
matter  of  any  importance.  The  partisanship  of  Ar- 
buckle was  the  cause  of  much  bitter  complaint  on  the 
part  of  Ross.  Several  times  they  gave  each  other  the 
lie  direct.  In  reply  to  one  attack  of  Arbuckle  upon 
Ross's  veracity,  the  latter  in  turn  practically  accused 

35  Cong.  Doc.  483,  No.  92,  p.  60. 

3fi  Cong.    Doc.   474,    No.   301. 

37  Cong.  Doc.  493,  No.  1,  p.  273. 


66  The  Cherokee  Indians 

Arbuckle  of  erasing  or  omitting  a  date  on  a  document 
in  order  to  impugn  his  veracity.  Again,  Ross  had  said 
at  the  time  of  the  murder  of  Boudinot  that  immedi- 
ately after  the  murder  Mrs.  Boudinot  had  sent  word 
to  him  to  escape,  as  his  Hfe  was  in  danger.  Arbuckle 
answered  that  Mrs.  Boudinot  denied  having  sent  such 
a  message  and  characterized  Ross's  story  as  a  lie. 
Ross,  in  turn,  replied  that  whether  the  message  was 
sent  by  Mrs.  Boudinot  or  not,  such  a  message  was 
delivered  to  him,  and  furthermore  that  in  the  distrac- 
tion of  such  a  time  there  would  be  no  wonder  if  Mrs. 
Boudinot  did  not  remember  what  she  did  or  did  not 
say,  and  that  Arbuckle  himself  admitted  that  he  heard 
that  some,  when  they  learned  of  the  murder,  were  in- 
censed and  would  have  killed  Ross  if  they  could  have 
done  so.^*  At  another  time  Ross  asserted  that  he  had 
written  to  Arbuckle  in  reference  to  a  proposed  meet- 
ing with  the  chiefs  of  the  opposing  party,  saying  that 
a  committee  would  go  "  armed  with  prudence  and  dis- 
cretion." The  conmiittee  upon  reaching  Arbuckle 
found  him  literally  armed  to  receive  them.  Where- 
upon, as  Ross  added,  the  committee  needed  all  the 
prudence  and  discretion  in  which  their  arms  consisted 
to  extricate  themselves  from  their  difficult  position.^^ 
These  are  illustrations  which  might  be  multiplied  of 
the  manner  in  which  General  Arbuckle  held  himself  in 
readiness  to  make  accusations  against  Ross  and  his 
followers,  with  no  basis  save  wild  and  intangible  rumors 
which  he  seldom,  apparently,  took  pains  to  verify. 

But    governmental    interference     in    their    internal 
affairs  was  not  the  only  complaint  that  the  Cherokees 

38  Cong.  Doc.  368,  No.  222,  p.  3. 
3»  Cong.  Doc.  365,  No.  12^,  p.  1. 


The  Cherokee  Indians  67 

laid  at  the  door  of  the  Washington  authorities.  The 
Treaty  of  New  Echota  made  necessary  certain  adjudi- 
cations and  the  payment  of  certain  claims.  A  board 
of  commissioners  was  appointed  to  do  this  work.  But 
it  necessarily  proceeded  with  a  slowness  that  was  ex- 
asperating, and  the  career  of  the  board  ended  long 
before  all  claims  had  been  settled.  In  fact  it  was 
necessary  to  appoint  several  successive  boards  for  this 
important  business.  But  the  slowness  of  the  procedure 
was  not  the  only  cause  of  complaint.  The  money 
appropriated  by  the  Treaty  of  New  Echota  was  being 
eaten  up  in  payment  of  these  claims,  and  those  who 
stood  near  the  foot  of  the  list  were  in  danger  of  find- 
ing no  funds  for  the  satisfaction  of  their  claims.  It 
was  alleged,  too,  by  the  Indians  that  there  was  ex- 
ecutive interference  with  the  work  of  the  commission, 
and  that  as  a  result  cases  were  not  dealt  with  impar- 
tially nor  settled  solely  on  their  merits.*^ 

At  the  time  of  removal  it  became  apparent  that  the 
cost  of  removing  the  Cherokees  west  would  greatly 
exceed  all  expectations  and  therefore  an  additional  ap- 
propriation of  over  one  million  dollars  had  been  made 
by  Congress,*^  in  1838,  with  the  purpose  in  part  of 
meeting  this  extra  expense.  The  members  of  the 
Treaty  party  had  removed  themselves  and  were  allowed 
twenty  dollars  per  capita  for  so  doing.  It  cost  more 
than  that  for  those  removed  under  John  Ross,  and  be- 
cause of  this  difference  in  allowance  the  Treaty  party 
claimed  a  share  in  the  additional  appropriation.'*^  And 
the  portion  of  this  additional  appropriation  available 

40  Cong.  Doc.  420,  No.  93. 

41  Cong.  Doc.  434,  Xo.  229,  p.  11. 
*2  Cong.  Doc.  443,  No.  234. 


68  The  Cherokee  Indians 

for  the  increased  expenses  of  moving  beyond  those  esti- 
mated, was  insufficient,  and  the  five  milHon  dollars  of 
article  one.  Treaty  of  New  Echota,  was  drawn  upon, 
but  there  was  great  doubt  as  to  the  propriety  of  this 
proceeding. 

In  regard  to  these  and  kindred  subjects  the  board 
of  inquiry  already  discussed,  that  had  investigated  the 
questions  of  government  and  turbulence  among  the 
Cherokees,  also  made  recommendations.  They  re- 
ported that  in  their  opinion  the  Western  Cherokees 
were  entitled  to  indemnity  because  the  Eastern  Chero- 
kees had  been  thrust  upon  them,  but  that  the  Eastern 
Cherokees  were  also  entitled  to  share  it  because  the 
former  had  a  share  in  the  money  from  the  sale  of 
lands  east.  It  was  not  just,  in  the  commissioners' 
opinion,  that  the  additional  and  unexpected  expense 
in  removal  should  be  allowed  to  exhaust  the  five  million 
dollars,  nor  just  that  the  Treaty  party  should  be  dis- 
appointed in  the  expectation  of  compensation  for 
homes  surrendered  because  all  the  money  was  taken 
for  the  removal  of  the  other  portion  of  the  tribe.  The 
board  thought  that  the  supplementary  article  of  the 
Treaty  of  New  Echota  showed  that  the  five  milHon  dol- 
lars ought  not  to  be  drawn  upon  for  the  expenses  of 
removal.  The  commission  recommended  that  the  au- 
thorities of  the  Cherokees  be  heard  in  respect  to  their 
claims  and  that  a  new  treaty  be  drawn  up  with  the 
nation.*^  It  will  be  remembered  that  certain  of  the 
Cherokees,  especially  those  in  North  Carolina,  had 
escaped  the  snare  into  which  their  brethren  fell,  and  had 
remained  east.  These  now  put  forth  a  claim  to  money, 
as  their  property  had  been  sold  by  government  agents, 
43  Cong.   Doc.  457,   No.  140,  p.   12  et  seq. 


The  Cherokee  Indians  69 

and  North  Carolina  had  extended  her  laws  and  protec- 
tion to  them  and  they  wished  to  become  citizens  of  that 
State.  They,  also,  wished  to  be  reimbursed  for  their 
property/* 

So  much  space  has  been  given  necessarily  to  the 
feuds  of  the  Cherokees,  and  the  turbulence  and  lawless- 
ness of  which  their  country  was  the  scene,  have  been 
so  dwelt  upon  that  it  would  not  be  surprising  if  a 
complete  misapprehension  of  the  real  condition  of  these 
Indians  existed  in  the  mind  of  the  reader,  who  might 
be  easily  pardoned  for  believing  that  these  Cherokees 
were  wild  Indians  indeed.  As  a  matter  of  fact  the 
Cherokees  were  to  a  very  great  degree  civilized.  The 
government  that  had  been  inaugurated  by  the  Chero- 
kees, like  the  one  which  they  had  established  for 
themselves  in  the  east,  was  modeled  after  that  of  the 
United  States.  There  were  the  three  departments: 
executive,  legislative  and  judicial.  Such  rights,  as  we 
consider  them,  as  freedom  of  worship  and  trial  by  jury 
were  guaranteed. ^^  In  December,  1841,  Lieutenant 
Colonel  Hitchcock  rendered  a  report  upon  the  affairs 
of  the  tribe,  in  which  he  told  with  some  detail  of  their 
manner  of  life.  Many  of  the  houses,  though  built  of 
logs,  were  comfortable,  and  had  many  improvements. 
They  were  of  two  stories,  and  had  porches  and  glass 
windows.  As  among  any  people,  there  were  many  poor. 
The  wealthy,  however,  Hitchcock  wrote,  shared  their 
means  with  the  poor  "  with  a  kindness  and  liberality 
that  have  not  been  learned  from  the  whites."  No  con- 
jurers were  to  be  found  in  the  nation.  Shoes  were 
almost  universally  worn.     Coats  and  trousers  of  cloth 

44  Cong.  Doc.  451,  No.  90. 

45  Cong.  Doc.  411,  No.  1098,  p.  74. 


70  The  Cherokee  Indians 

were  extensively  worn.  The  Cherokee  tongue  had  be- 
come a  written  language  through  the  genius  of  George 
Guess,  a  man  of  exceptional  ability.  Newspapers  had 
had  a  long  history  among  the  Cherokees.  There  were 
many  schools  in  the  country,  as  there  were  also  churches, 
and  numbers  of  the  Indians  had  professed  Christianity. 
Among  the  people  there  was  considerable  white  blood 
from  early  times.  They  were  not  at  all  disposed  to  go 
to  war  with  the  United  States  unless  driven  to  it  by 
the  most  extreme  injustice.^^ 

46  Cong.   Doc.  425,  No.   219,  p.  5   et  seq. 


CHAPTER  VI 

CHANGING    TIMES 

THE  uncertainty,  the  tension  in  Cherokee  affairs, 
the  strained  relations  between  the  Cherokee  fac- 
tions, the  misunderstandings  between  the  majority  of 
the  nation  and  the  Federal  Government  must  not,  even  if 
they  could,  continue  indefinitely.  That  was  certain.  A 
great  many  of  those  irreconcilable  to  the  dominance 
of  the  Ross  party  were  urging  the  United  States  to 
grant  them  land  elsewhere,  and  this  scheme  had  been 
favorably  regarded  and  recommended  by  the  President 
more  than  once.  Preliminary  steps  with  this  end  in 
view  had  been  taken.  The  Ross  party  strenuously  op- 
posed the  plan.  They  vigorously  objected  to  Federal 
interference  with  their  internal  affairs.^  Especially  did 
they  remonstrate  against  the  accompanying  recom- 
mendation that  the  United  States  laws  be  extended 
over  them.  This  they  regarded  as  in  direct  violation 
of  the  Treaty  of  New  Echota,  which  had  promised  the 
Indians  protection  in  their  own  government  and  in 
the  laws  they  should  make,  with  the  one  proviso  that 
these  should  not  be  inconsistent  with  those  of  the 
United  States.^  As  the  case  stood,  the  alternative  to 
a  division  of  the  nation  was  a  treaty  which  should 
reunite  the  parties  and  bring  harmony  out  of  discord. 

The  matters  which  such  a  treaty  must  settle  were 
not   only   the   factional   strife,   but    the   interpretation 
1  Cong.    Doc.    476,    No.    331.  2  Article   5. 


72  The  Cherokee  Indians 

of  certain  articles  of  the  Treaty  of  New  Echota  in- 
volving the  amounts  of  money  clue  the  Indians  and  the 
various  claims  which  had  been  put  forth.  The  task 
was  no  simple  one.  For  some  time  efforts  had  been 
made  by  different  parties  to  obtain  the  consent  of  all 
concerned  to  the  proposition  that  a  treaty  be  made. 
At  length  negotiations  were  begun  and  in  1846  a  treaty 
was  concluded. 

This  treaty  ^  began  by  affirming  that  the  Indian  lands 
were  for  the  whole  Cherokee  people.  It  was  agreed  that 
there  should  be  peace  and  that  party  distinctions  should 
cease.  Amnesty  was  to  be  declared.  There  should 
be  no  armed  police.  The  rights  of  petition  and  trial 
by  jury  were  guaranteed.  In  article  three  it  said  that 
certain  claims  had  been  allowed  by  the  board  of  com- 
missioners appointed  under  the  Treaty  of  1835  "  for 
rent  under  the  name  of  spoliations  and  improvements, 
and  for  property  of  which  the  Indians  were  dispossessed 
provided  for  under  article  sixteen  "  of  the  Treaty  of 
New  Echota,  and  that  a  further  amount  has  been  al- 
lowed for  reservations  under  the  Treaty  of  1835  by 
said  commissioners,  and  it  is  assumed  that  the  amounts 
then  allowed,  together  with  the  expenses  of  making  the 
Treaty  of  New  Echota,  were  wrongfully  paid  out  of 
the  five  million  dollar  fund.  Therefore  the  United 
States  agree  to  reimburse  the  said  fund  the  amounts 
there  charged  to  the  said  fund.  The  treaty  defined 
the  claim  of  the  Western  Cherokees  *  by  asserting  that 
by  the  Treaty  of  1828  the  territory  was  the  property 
of  the  whole  Cherokee  nation,  and  provided  that  a  sum 
equal  to  one-third  of  the  residuum  of  the  six  million 
dollars  was  to  be  divided  per  capita  among  the  Western 

3  U.  S.  Stat,  at  Large,  vol.  9,  p.  871.  4  Article  Four. 


The  Cherokee  Indians  7S 

Cherokees.  The  Treaty  party  was  to  be  indemnified 
to  the  amount  of  one  hundred  and  fifteen  thousand  dol- 
lars. The  Federal  Government  promised  two  thousand 
dollars  for  a  printing  press.  The  United  States  would 
give  a  per  capita  division  of  the  balance  of  the  six 
million  dollars.  The  treaty  appointed  the  Senate  um- 
pire to  decide  whether  or  not  the  amount  for  subsist- 
ence was  properly  chargeable  to  the  fund,  and  also 
whether  or  not  the  Indians  should  be  allowed  interest 
on  whatever  sum  might  be  found  due  them,  and,  if  this 
question  should  be  decided  affirmatively,  from  what  time 
the  interest  should  date  and  at  what  rate  per  annum. 
Provision  was  also  made  out  of  the  indemnity  for  the 
heirs  of  the  Ridges  and  Boudinot,  and  a  clause  was  in- 
serted saying  that  the  treaty  should  not  take  away  the 
rights  of  the  Cherokees  still  residing  east. 

On  February  19,  1847,  Mr.  Jarnagin  reported  in 
the  Senate  that  peace  was  restored  in  the  Cherokee 
nation.  After  more  than  a  decade  of  trouble,  strife 
and  confusion,  a  treaty  and  peace !  But  the  cessation 
of  strife  did  not  signify  the  dawn  of  an  era  of  pros- 
perity. Years  of  delay,  bickering  and  misunderstand- 
ing must  ensue  before  the  United  States  could  settle 
according  to  the  provisions  of  the  Treaty  of  1846. 
It  may  have  been  observed  already  that  in  making 
treaties  with  the  Cherokees  the  Senate  possessed  to  a 
high  degree  the  qualities  for  which  the  oracles  of  old 
were  noted.  The  various  treaties  seem  to  have  one 
feature  in  common,  ambiguity.  Nobody  even  knew 
what  the  intentions  of  the  Senate  were,  and  when  appeal 
was  made  to  the  Senate  to  interpret  its  own  creation 
that  august  body  threw  up  its  hands  with  an  air  of 


74  The  Cherokee  Indians 

injured  innocence  and  inquired  how  in  the  world  it  was 
to  perform  such  a  task. 

It  will  be  recalled  that  the  first  article  of  the  Treaty 
of  New  Echota  granted  the  Indians  five  million  dollars. 
But  was  this  sum  to  include  expenses  of  removal  and 
subsistence?  That  was  the  question  asked  immediately. 
The  answer  was  given  in  the  third  supplementary 
article  which  allowed  six  hundred  thousand  dollars  ad- 
ditional for  this  purpose  and  in  lieu  of  pre-emptions 
and  reservations,  and  the  one  hundred  thousand  dollars 
allowed  by  article  one  for  spoliations.  Then,  at  a  later 
date  something  over  a  million  dollars  more  was  granted 
for  removal.  Then  a  second  question  arose.  Did  the 
United  States  intend  that  these  various  grants  should 
be  regarded  as  a  lump  sum  from  which  the  various  de- 
ductions called  for  by  treaty  should  be  made,  or  were 
these  sums  to  be  kept  separate,  each  to  be  drawn  upon 
only  for  certain  specified  charges?  The  ambiguity  of 
the  Treaty  of  New  Echota  may  be  seen  by  a  compar- 
ison of  the  fifteenth  article  with  the  second  supplemen- 
tary article.  The  former  mentioned  the  cost  of  removal 
and  subsistence  among  the  enumerated  sums  to  be  de- 
ducted from  the  five  million  dollars,  but  the  latter 
granted  the  six  hundred  thousand  for  this  purpose  and 
for  several  other  particularized  expenses.  Was  this 
supplementary  article  meant  to  relieve  the  five  million 
dollars  entirely  of  those  particularized  items  or  was 
it  meant  simply  to  increase  the  original  allowance? 
To  how  great  an  extent  was  it  meant  to  be  of  the  nature 
of  a  substitute  as  well  as  of  a  supplement? 

It  was,  of  course,  just  this  ambiguity  and  the  ques- 
tions to  which  it  gave  birth  that  the  new  treaty  (that 


The  Cherokee  Indians  75 

of  1846)  sought  to  elucidate  or  to  provide  a  means 
for  elucidating.  But  on  May  10,  1848,  Commissioner 
Medill  gave  it  as  his  opinion  that  the  five  million  d(^llar 
fund  was  liable  to  all  objects  enumerated  in  the  fif- 
teenth article  of  the  Treaty  of  New  Echota  except 
spoliations,  and  that  the  contention  that  by  making  the 
additional  grant  of  one  million  dollars  the  United 
States  assumed  the  whole  expense  of  removal  and  sub- 
sistence and  relieved  the  five  million  of  this  charge,  was 
not  justified.  He  quoted  Secretary  Cass  as  saying  to 
John  Ross  that  the  five  million  dollars  was  "  m  full 
for  the  entire  cession,  and  nothing  more  will  be  paid 
for  removal  or  any  other  purpose  or  object  whatever."' 
He  regarded  the  extra  million  as  a  voluntary  grant 
given  for  the  purpose  of  hastening  the  removal  of  the 
Indians.^  The  Cherokees  protested  against  this  inter- 
pretation,^ and  argument,  perplexity  and  disagreement 
postponed  a  settlement  and  the  matter  dragged  on 
for  several  years. 

At  length  in  August,  1850,  the  Senate  committee 
which  had  been  considering  the  Cherokee  claims  came 
to  a  decision.  It  was  decided  that  the  charge  for  sub- 
sistence ought  to  be  borne  by  the  United  States.  This 
conclusion  was  not  grounded  so  much  upon  the  treaty 
itself,  which  the  committee  admitted  to  be  ambiguous, 
as  upon  subsequent  negotiations  in  which  Poinsett  gave 
assurances  to  Ross  that  the  United  States  should  bear 
the  expense  of  subsistence.  The  amount  to  be  added 
to  the  residue  of  the  fund  as  due  for  subsistence  was 
$189,422.76.  It  was  agreed  that  the  Cherokees  were 
right  in  contending  that  the  amount  expended  by  the 

5  Cong.  Doc.  521,  No.  65,  p.  6. 

6  Cong.  Doc.  511,  No.  146. 


76  The  Cherokee  Indians 

United  States  for  agents  was  not  in  the  meaning  of 
article  nine  of  the  Treaty  of  1846  and  there  was  added 
$96,999.42  to  the  Indian  fund  because  of  this  charge. 
Interest  was  due  them  from  April,  1838,  at  five  per  cent. 
In  February,  1851,  the  final  appropriation  of  $724,- 
603.27  was  made  in  full  of  all  demands.*^  But  let  it 
not  be  imagined  that  this  was  the  end  of  the  matter 
absolutely.  The  Old  Settlers  received  what  was  paid 
to  them  under  protest  lest  the  fact  of  their  accepting 
it  should  be  so  construed  as  to  prevent  their  urging 
claims  not  admitted  by  the  treaty  but  which  they  con- 
sidered to  be  just.  And  these  claims  were  pressed. 
Over  forty  years  more  were  to  elapse  before  the  final 
word  should  be  said  on  the  subject.  An  appropriation 
had  been  made  also  for  the  North  Carolina  Cherokees,^ 
but  they  claimed  the  right  to  participate  in  all  the 
benefits  conferred  by  treaty  upon  their  brethren  in  the 
West. 

With  money  owed  but  its  payment  delayed,  and 
with  money  borrowed  to  tide  them  over  until  the  desired 
better  day  should  dawn,  the  Cherokee  nation  suffered 
considerable  distress  during  this  period.  By  the  terms 
of  the  Treaty  of  New  Echota  a  tract  of  eight  hundred 
thousand  acres  in  the  southeastern  comer  of  Kansas 
was  purchased  by  the  Cherokees  from  the  United  States 
for   five   hundred   thousand    dollars.      This    tract    was 

7  $627,063.95— balance  of  fund, 

189,422.76— allowed   for  subsistence  over  the  $104,767.00, 
96,999.42— paid  to  agents. 

$913,486.13 

Cong.  Doc.  565,  No.l76.     Cong.  Doc.  743,  No.  123,  p.  2.     U.  S. 
Stat,  at  Large,  vol.  9,  p.  572. 

8  Cong.  Doc.  743,  No.  123,  p.  2  et  seq.     U.  S.  Stat,  at  Large, 
vol.  9,  p.  264. 


The  Cherokee  Indians  77 

known  as  the  neutral  lands.  In  order  to  extricate 
themselves  from  their  financial  difficulties  the  Indians 
desired  to  sell  these  to  the  Government,  but  the  latter 
did  not  consider  it  expedient  to  buy.^ 

In  1853  sensational  rumors  of  several  murders  issued 
from  the  Cherokee  country  and  it  was  feared  that  his- 
tory would  repeat  itself  and  a  new  "  reign  of  terror  " 
would  supersede  the  tranquillity  so  recently  established. 
Murders  had  been  committed  in  a  family  named  Adair, 
but  the  authorities  of  the  Cherokee  nation  quickly 
gained  control  of  the  situation  and  it  appeared  that  the 
reports  had  been  exaggerated.  The  excitement  soon 
subsided.  There  was  no  evidence  that  the  outbreak  was 
of  a  political  nature.^^ 

An  intercourse  act  had  been  passed  by  Congress  in 
1834  regulating  the  relations  between  the  Indians  and 
the  United  States.  This  proved  inadequate  in  some 
respects.  It  provided  for  the  expulsion  of  white  in- 
truders from  Indian  country,  but  attached  no  penalty 
for  repeated  violations  of  this  section.  Consequently 
intruders  could  be  removed  by  Federal  troops,  but 
there  was  nothing  to  prevent  their  return.  So  the 
Cherokees  were  not  free  from  that  perpetual  pest  of 
the  Indian — the  intruding  white.  This  act  also  ex- 
tended Federal  laws  over  Indian  country,  provided  they 
should  not  include  the  punishment  for  crimes  com- 
mitted by  one  Indian  against  the  person  and  property 
of  another  Indian.  Was  this  entirely  consistent  with 
the  Treaty  of  New  Echota,  which  gave  the  Cherokees 
power  to  make  laws  for  their  own  people  and  those 
connecting  themselves  with  them  ?    The  Supreme  Court 

9  Cong.  Doc.  673,  No.  1,  p.  400. 

10  Cong.  Doc.   690,  No.   1,  p.  253. 


78  The  Cherokee  Indians 

answered  the  question  in  the  "  United  States  versus 
Rogers,"  -^^  a  case  which  also  illustrates  the  imperfect 
adjustment  of  the  relations  between  the  Indian  and 
the  Federal  Government  and  the  contention  periodically 
arising  therefrom.  Rogers,  a  white  man,  but  a  Chero- 
kee citizen  by  adoption,  murdered  Nicholson,  another 
white  man,  but  a  citizen  of  the  Cherokee  nation.  It  was 
claimed  that  the  United  States  courts  had  no  jurisdic- 
tion. The  Supreme  Court  ruled  that  the  United  States 
had  adopted  the  principle  that  the  Indian  tribes  within 
the  United  States  were  subject  to  its  authority.  The 
court  furthermore  held  that  a  white  man  becoming  an 
Indian  at  mature  age  did  not  by  so  doing  become  an 
Indian  within  the  meaning  of  the  law.  The  Treaty  of 
New  Echota  did  not  supersede  the  act,  but  was  con- 
trolled and  explained  by  it. 

In  1856  there  was  another  case  of  conflict  of  juris- 
diction between  the  United  States  and  Cherokee  courts. 
A  man  was  arrested  for  a  crime  by  the  authorities  of 
the  Cherokee  nation.  While  he  was  awaiting  trial 
United  States  officers  arrested  him  for  an  alleged  crime 
committed  subsequently  to  that  for  which  he  was  being 
held,  and  took  him  from  the  Cherokees.^^  This  was 
regarded  by  the  Indians  as  a  high-handed  act  and 
aroused  their  indignation. 

It  is  evident  that  the  Treaty  of  1846  had  not  given 
a  perfect  solution  to  all  of  the  problems  concerning 
the  Cherokees  and  their  relation  to  the  Federal  Govern- 
ment. 

11  4  Howard,  p.  567.  12  Cong.  Doc.  859,  No.  113,  p.  2. 


CHAPTER  VII 

THE    CIVIL   WAR 

THE  ominous  rumblings  that  preceded  the  storm 
of  civil  war  which  broke  in  1861  were  heard 
in  the  Cherokee  country.  In  such  crises  men  ordinarily 
indifferent  to  questions  of  policy  are  forced  into  es- 
pousing one  cause  or  another,  and  as  the  excitement 
increases  party  lines  become  more  stringent.  The 
Cherokees  proved  no  exception.  They  took  sides.  As 
many  of  them  owned  slaves  it  is  not  surprising  that 
there  was  a  party  favorable  to  the  South.  It  was  less 
to  be  expected  that  there  would  be  any  strong  senti- 
ment of  loyalty  to  the  Union.  But  such  there  was. 
In  those  days  immediately  preceding  the  war  there  was 
a  division  of  the  Cherokees  into  two  active  parties. 
One  party  favored  secession;  the  other,  made  up 
mostly  of  the  adherents  of  John  Ross  and  known  as  the 
"  Pin  Indians  "  from  a  badge  they  wore,  were  pro- 
Union.^  When  war  broke  out  the  Confederacy  imme- 
diately tried  to  win  over  the  Cherokees.  For  a  time 
John  Ross  successfully  resisted  the  overtures  of  the 
South  and  endeavored  to  maintain  a  position  of  neu- 
trality. Like  most  mediate  positions  this  was  difficult 
to  sustain,  and  at  a  convention  called  by  Ross  an  alli- 
ance with  the  Confederates  was  favored  and  eventually 
a  treaty  was  entered  into  with  them  and  received  the 
1  Report  of  Comm.  of  Ind.  Aff.,  1863,  p.  174. 


80  The  Cherokee  Indians 

support  of  Ross.^  During  the  first  year  of  the  war  the 
Confederate  armies  overran  the  Cherokee  territory. 
According  to  the  requirements  of  the  treaty  with  the 
South  troops  were  raised  which  joined  the  Confederate 
army.  Nevertheless,  despite  all  this  a  majority  of  the 
Indians  remained  loyal  to  the  Union  and  a  regiment  of 
loyal  Cherokees  was  raised  and  joined  the  Federal 
forces  and  fought  throughout  the  war. 

In  the  winter  of  1862  a  Union  army  entered  and  for 
a  short  time  occupied  the  Cherokee  country.  Then  it 
retreated  and  the  Confederates  once  more  advanced. 
Once  again  the  Federal  troops  advanced,  but  only  as 
far  as  Fort  Gibson.^  After  this  practical  desertion  of 
the  Cherokees  by  the  North,  Indian  refugees  unpro- 
tected by  the  United  States  from  the  raids  and  devas- 
tation of  the  Southern  troops  sought  the  protection  and 
shelter  of  the  army  posts  near  their  borders.  The  In- 
dian agent  reported  that  there  were  as  many  as  two 
thousand  of  these  loyal  but  destitute  Cherokee  refugees 
in  that  memorable  winter  of  1862.^  From  that  time 
until  the  close  of  the  war  the  lot  of  the  Indians  was 
most  deplorable  and  their  condition  pitiable  in  the  ex- 
treme. Their  losses,  destitution  and  sufferings  can 
scarcely  be  exaggerated — scarcely  depicted.  The 
North  afforded  them  adequate  protection  at  no  time. 
There  were  raids  by  the  rebel-Cherokee  Stand  Watie  ^ 
as  well  as  by  other  bodies  of  Confederate  soldiers. 
Under  the  very  noses  of  the  garrison  at  Fort  Gibson, 

2  Report  of  Comm.  of  Ind.  Aff.,  1862,  p.  1.     Cong.  Doc.  1433, 
No.  150,  p.  20. 

3  Report  of  Comm.  of  Ind.  AfF.,  1862,  pp.  28  and  137.     Report 
of  Comm.  of  Ind.  Aflf.,  1865,  p.  285. 

4  Report  of  Comm.  of  Ind.  Aff.,  1862,  p.  137. 
s  Report  of  Comm.  of  Ind.  Aff.,  1863,  p.  179. 


The  Cherokee  Indians  81 

which  apparently  made  no  attempt  to  prevent  it,  the 
Confederates  drove  off  twelve  hundred  or  fifteen  hun- 
dred mules  and  horses  belonging  to  the  Cherokees  and 
the  United  States.^  There  seemed  no  help  for  these 
loyal  Indians.  What  little  they  had  planted  was  of 
no  value  to  them.  The  officers  of  the  Northern  troops 
appropriated  what  they  desired  of  their  crops,  the 
teamsters  and  hangers-on  followed  their  example  and 
the  remnant  the  Confederates  made  away  with.*^  Under 
such  conditions  what  incentive  was  there  for  them  to 
plant,  even  though  they  were  destitute.''  In  the  course 
of  the  war  it  was  estimated  that  damage  to  the  extent  of 
two  million  dollars  was  sustained  by  the  Cherokees.^ 
After  the  incipient  attempt,  however,  made  by  the 
Union  army  to  relieve  the  Cherokees,  the  latter  through 
their  National  Council  declared  the  Confederate  treaty 
abrogated,  abolished  slavery  and  removed  from  office 
all  disloyal  Cherokees.^  It  was  in  this  same  year 
(1863)  that  a  Cherokee  regiment  serving  with  the 
Confederates  deserted  to  the  Union. ^^  Ross  himself 
by  this  time  had  renewed  his  professions  of  loyalty  to 
the  Union,  claiming  he  always  had  been  loyal  at  heart. 
Ross's  vacillating  course  naturally  did  not  bring  him 
into  increased  favor  with  the  Federal  authorities.  In 
1865,  however,  his  fellow-Cherokees  petitioned  that 
he  be  re-established  in  his  home  and  that  the  laws 
of  the  nation  might  be  once  more  put  in  operation.^^ 

6  Report  of  Comm.  of  Ind.  Aff.,  1865,  p.  285. 

7  Report  of  Comm.  of  Ind.  Aff.,  1864,  p.  209. 

8  Report  of  Comm.  of  Ind.  Aff.,  1864,  p.  286. 

9  Report  of  Comm.  of  Ind.  Aff.,  1863,  p.  23.     Cong.  Doc.  1232, 
No.  56. 

10  Report  of  Comm.  of  Ind.  Aff.,  1863,  p.  174. 

11  Cong.   Doc.    1232,   No.   52. 


82  The  Cherokee  Indians 

But  in  1866  when  a  new  treaty  to  adjust  the  conditions 
caused  by  the  war  was  being  arranged  between  the 
Cherokees  and  the  United  States,  Ross,  who  for  so 
many  years  had  been  the  pre-eminent  leader  in  nego- 
tiating or  opposing  treaties,  was  too  ill  to  attend.  In 
that  same  year  he  died. 

It  would  scarcely  seem  a  digression  to  consider 
briefly  this  remarkable  man  with  whose  personality  so 
much  of  the  Cherokee  history  is  indissolubly  bound. 
He  was  bom  in  1790  of  Scotch-Indian  parentage. 
From  young  manhood  until  the  day  of  his  death  he 
retained  the  leadership  of  the  Cherokee  nation,  al- 
though assaults  were  made  upon  his  character  as  well 
as  upon  his  leadership.  He  is  variously  described  as 
a  great  robber,  liar  and  general  hypocrite,  and  as  a 
man  of  exemplary  life  and  unblemished  Christian  char- 
acter. To  pass  a  judgment  upon  him  which  shall  be 
fair  is  perhaps  an  almost  impossible  task.  Allowing 
for  the  fact  that  those  who  charged  him  with  crooked- 
ness were  his  enemies,  and  remembering  that  he  cham- 
pioned the  full-bloods  and  was  usually  on  the  side  of 
order,  and  that  his  temper  as  shown  by  his  correspond- 
ence was  finer,  invariably,  than  that  of  his  opponents, 
whom  he  usually  defeated  by  weight  of  evidence,  the 
judgment  on  the  whole  should  be  favorable.  It  is  most 
difficult  to  explain  his  course  in  the  war.  Before  the 
war  he  was  pro-Union ;  indisputably  he  long  resisted  the 
Confederate  overtures.  Perhaps  the  best  explanation 
is  that  he  was  first  a  Cherokee  and  acted  for  the  wel- 
fare of  his  nation  as  he  saw  it.  He  was  accused  of 
using  his  position  for  personal  profit,  but  he  died  a 
poor  man.     That  he  was  a  man  of  great  ability  none 


The  Cherokee  Indians  83 

would  question.  Mr.  P.  M.  Butler,  Cherokee  agent 
said  of  him,  "  I  think  him,  privately,  a  retiring,  modest, 
good  man ;  as  a  public  man  he  has  dignity  and  intelli- 
gence. He  is  ambitious  and  stubborn,  often  tenacious 
of  his  own  views  to  an  extent  that  prejudices  both  him- 
self and  his  cause;  wanting  in  wisdom  and  policy  in 
selecting  at  all  times  his  own  friends  and  partisans  for 
public  employment.  He  looks  rather  to  what  he  thinks 
the  rights  of  his  people  than  to  what  is  expedient  or  to 
what  is  to  be  obtained  for  them."  ^^ 

Though  the  Cherokees  were  re-established  in  their 
country  with  Tahlequah  as  their  capital,  reconstruction 
was  required  among  them  as  well  as  in  the  Southern 
States.  Readjustment  was  sought  by  the  treaty  con- 
cluded in  1866.^^  This  treaty  declared  the  Confederate 
treaty  void.  The  United  States  declared  an  amnesty 
and  all  laws  of  confiscation  were  repealed.  Provision  was 
made  for  negroes  and  for  Cherokee  freedmen.  There 
was  to  be  a  district  in  which  they  might  reside.  They 
were  to  have  local  self-government  and  representation 
in  the  Cherokee  National  Council.  Laws  were  to  be 
uniform  throughout  the  nation.  "  Should  any  such 
law  .  .  .  operate  unjustly  or  Injuriously  in  the  said 
district  "  in  the  opinion  of  the  President,  he  was  au- 
thorized and  empowered  to  correct  such  evil  and  to 
adopt  means  necessary  to  secure  the  Impartial  admin- 
istration of  justice  as  well  as  a  fair  and  equitable 
application  and  expenditure  of  national  funds  as  be- 
tween the  people  of  this  and  every  other  district  in  said 
nation.     A  United  States  court  was  to  be  created  In 

12  Letter  of  P.  M.  Butler  to  T.  Hartley  Crawford,  Comm.  of 
Ind.   Aff.,  March  4,  1842. 

13  U.  S.  Stat,  at  Large,  vol.  14,  p.  799. 


84  The  Cherokee  Indians 

Indian  Territory  and  until  then  the  United  States  Dis- 
trict Court  was  to  have  jurisdiction  in  all  cases  civil 
and  criminal  in  the  district  before  described  when  one 
party  was  in  the  district  and  the  other  outside  of  the 
district  in  the  Cherokee  nation. 

Article  eight  said  that  no  license  to  trade  was  to  be 
granted  by  the  United  States  unless  approved  by  the 
Cherokee  Council.  Freedmen  were  to  have  all  the 
rights  of  native  Cherokees.  The  Cherokees  were  given 
the  right  to  sell  produce,  live-stock,  merchandise,  man- 
ufacturing articles  without  restraint  paying  any  tax 
thereon  which  "  is  now  or  may  be  levied  "  on  the  quan- 
tity sold  outside  Indian  Territory.  The  eleventh 
article  granted  right  of  way  to  railroads  approved  by 
Congress.  By  the  terms  of  article  twelve  the  Chero- 
kees agreed  that  a  General  Council  consisting  of  dele- 
gates elected  by  each  nation  or  tribe  within  Indian 
Territory  might  be  annually  convened  in  said  terri- 
tory. The  object  of  this  was  to  regulate  inter-tribal 
relations  such  as  extradition.  The  Secretary  of  the 
Interior  was  given  the  power  of  appointing  the  pre- 
siding officer.  The  President  of  the  United  States 
was  given  power  to  suspend  the  laws  enacted  by  the 
Council. 

The  United  States  was  to  be  allowed  to  establish 
courts,  provided  that  the  Cherokee  courts  be  allowed 
exclusive  jurisdiction  in  cases  where  Cherokees  were 
the  sole  parties.  The  United  States  might  also  settle 
friendly  Indians  on  unoccupied  lands  east  of  96  degrees 
longitude  on  such  terms  as  might  be  agreed  upon  by 
them  and  the  Cherokees  with  the  approval  of  the 
President.     Such  tribes  were  to  be  incorporated  with 


The  Cherokee  Indians  85 

the  Cherokee  nation  or  to  have  a  district  set  apart  for 
them  and  to  pay  for  it  into  the  national  fund. 
Friendly  Indians  might  also  be  settled  west  of  96  de- 
grees with  Cherokee  consent. 

The  neutral  lands  were  ceded  to  the  United  States  ^* 
in  trust  and  also  the  strip  ceded  by  article  four  of  the 
Treaty  of  New  Echota,  which  is  included  in  the  State 
of  Kansas,  and  consent  was  given  that  such  lands  should 
be  included  in  the  State.  The  lands  were  to  be  ap- 
praised at  not  less  than  a  dollar  an  acre  by  appraisers, 
one  to  be  appointed  by  the  United  States,  one  to  be 
selected  by  the  Cherokees  and  if  a  third  were  needed 
he  should  be  selected  by  the  other  two. 

The  Secretary  of  the  Interior  was  to  sell  tracts  of 
one  hundred  and  sixty  acres  to  the  highest  bidder,  with 
the  proviso  that  nothing  in  the  act  should  prevent  him 
from  selling  the  whole  of  said  lands  not  occupied  by 
actual  settlers,  at  the  date  of  the  ratification  of  the 
treaty,  entitled  to  pre-emption  rights  under  the  laws 
of  the  United  States,  in  a  body  to  any  responsible 
person  for  cash  but  not  less  than  at  one  dollar  an  acre. 

Whenever  the  Cherokee  National  Council  requested 
it  the  Secretary  of  the  Interior  was  to  have  their  coun- 
try surveyed  and  allotted.  A  Cherokee  agent  was  to 
be  allowed  to  examine  the  account  of  the  nation  with 
the  Government  of  the  United  States.  Sums  due  were 
to  be  invested  by  the  Federal  Government  and  the  in- 
terest to  be  paid  semi-annually  to  the  order  of  the 
Cherokee  nation  for  education  and  charity.  The 
United  States  guaranteed  to  the  people  of  the  Cherokee 
nation  the  quiet  and  peaceable  possession  of  their 
country  and  protection  against  domestic  feuds  and  in- 
1*  Article  17. 


86  The  Cherokee  Indians 

surrections  and  against  hostilities  of  other  tribes  and 
against  intruding  citizens  of  the  United  States.  The 
United  States  might  estabhsh  a  military  post  in  the 
Cherokee  nation.  All  previous  treaties  in  force  not 
inconsistent  with  this  one  were  reaffirmed. 

According  to  the  provision  of  the  Treaty  of  1866, 
the  Federal  Government  endeavored  to  settle  friendly 
Indians  on  the  land  west  of  96  degrees,  but  with  no 
great  success.  In  1872  ^^  arrangements  were  made 
for  appraising  the  lands,  and  four  years  later  an  appro- 
priation being  made  for  the  purpose  ^^  they  were 
appraised.  On  the  ground  that  they  were  less  valuable 
because  for  the  use  of  Indians,  they  were  appraised  at 
about  half  their  actual  value. -^"^  This  amount  was  later 
raised  by  executive  order  to  forty-seven  and  a  fraction 
cents  per  acre.  Up  to  1881,  the  Cherokees  were  anx- 
ious to  dispose  of  all  this  land  at  that  price.  But  in 
that  year  a  change  took  place  in  the  policy  of  the 
Cherokees.  They  began  at  that  time  to  rent  the  land 
to  cattle-men  for  grazing  purposes  and  this  was  found 
to  be  very  profitable.  Forthwith  the  Cherokees  de- 
manded a  dollar  and  a  quarter  an  acre.  In  1886  the 
Cherokee  delegation  in  Washington  filed  notice  to  the 
Secretary  of  the  Interior  that  "  all  contracts  made  by 
any  authority  representing  the  Cherokee  nation  for  the 
sale  of  any  lands  in  the  Outlet  are  repealed  and  void."  ^^ 
But  if  there  had  been  a  change  in  the  Cherokee 
point  of  view  the  General  Government  had  also  assumed 
a  new  attitude  and  now  advocated  a  new  policy.     The 

18  U.  S.  Stat,  at  Large,  vol.  17,  p.  190. 
le  U.  S.  Stat,  at  Large,  vol.  19,  p.  120. 

17  Cong.    Doc.    210,    No.    54. 

18  Cong.  Doc.  2888,  No.  3768,  p.  25. 


The  Cherokee  Indians  8T 

second  article  of  the  Treaty  of  New  Echota,  it  will 
be  recalled,  promised  the  Indians  a  perpetual  outlet 
west  to  the  territorial  limits  of  the  United  States. 
What  was  the  nature  of  this  grant  ?  When  the  Indians 
evinced  a  different  disposition  in  regard  to  these  lands, 
the  Federal  Government  undertook  to .  convince  itself 
that  the  Cherokees  had  no  real  claim,  but  that  the 
grant  of  the  Outlet,  as  it  was  called,  was  merely  of 
the  nature  of  an  easement  or  passage-right.  How 
much  Congress  was  influenced  by  the  increasing  desire 
to  throw  open  these  lands  to  homestead  settlers  does 
not  appear.  It  can  be  said,  however,  that  as  usual  the 
wording  of  the  treaty  was  not  such  that  "  he  who  runs 
may  read."  The  Treaty  of  1828  with  the  Western 
Cherokees  contained  the  first  provision  concerning  an 
outlet.  It  granted  a  "  perpetual  outlet  west,  and  a  free 
and  unmolested  use  of  all  country  lying  west  of  the 
western  boundary."  In  1821  Mr.  Calhoun,  Secretary 
of  War,  said  in  reference  to  this  outlet  ^^  that  there  was 
"  no  right  to  soil  .  .  .  merely  an  outlet."  Judge 
Brewer  was  quoted  by  Secretary  Noble  ^^  as  having  said 
in  the  Circuit  Court  that  the  Indians  had  only  the  ri^ht 
of  passage.  But  it  is  difficult  to  understand  how  this 
opinion  could  prevail.  In  the  "  United  States  versus 
Rogers  "  ^^  Judge  Parker  said  that  the  title  to  the  Out- 
let was  substantially  the  same  as  that  by  which  the 
Cherokees  held  other  lands.  But  this  opinion  was  cur- 
sory, as  the  case  was  dismissed  for  lack  of  jurisdiction. 
But  Secretary  Cass  had  said  ^^   the  "  entire  property 

19  Cong.  Doc.  9900,  No.  63. 

20  Consr.  Doc.  2900,  No.  63,  p.  5  H  »eq. 

21  ?3  Federal   Reports,  p.   657. 

22  Sen.  Exec.  Doc.  HO,  ?5th  Cong.,  2d  Sess.,  p.  98. 


88  The  Cherokee  Indians 

of  this  tract,  six  million  acres,  [i.  e.  the  Outlet]  for 
their  unconditional  use."  President  Jaclcson  had 
spoken  of  their  country  as  consisting  of  13,800,000 
acres.  (March  16,  1835.)  Only  with  the  Outlet  could 
there  be  such  an  area.  If  the  right  to  the  Outlet  were 
only  an  easement  the  provision  of  the  Treaty  of  New 
Echota  allowing  other  Indians  to  obtain  salt  from  the 
salt  plain,  would  be  inexplicable,  as  would  also  be  the 
permission  which  the  United  States  deemed  it  necessary 
to  obtain  to  settle  friendly  Indians  on  the  lands  with 
the  added  clause  that  the  Cherokees  should  retain  pos- 
session and  jurisdiction  over  the  unsold  lands.  The 
Cherokee  "  strip "  was  "  ceded "  by  the  Treaty  of 
1866.  In  "  the  Cherokee  nation  vs.  the  South  Kansas 
Railroad  "  ^3  the  Court  said  "  title  to  all  lands  of  the 
Cherokee  nation  was  obtained  by  grant  from  the  United 
States.  This  title  is  a  base,  qualified  and  determinable 
fee  without  right  of  reversion,  but  only  possibility  of 
reversion  in  the  United  States."  Congress  cannot 
grant  right  of  way  over  Cherokee  lands  on  the  ground 
that  it  holds  the  fee,  but  it  must  do  so  by  the  right  of 
eminent  domain,  the  court  said.  In  1890  Oklahoma 
was  created  as  a  territory.  The  Cherokees  protested 
against  this  as  a  violation  of  treaties.  The  sponsor 
of  the  bill  creating  Oklahoma  admitted  this  but  said 
it  was  impossible  to  avoid  it.^'*  But  Oklahoma's  exist- 
ence no  doubt  increased  the  insistence  of  the  demand 
for  opening  the  Outlet  to  settlers.  As  negotiations 
with  the  Cherokees  for  it  were  fruitless,  the  House 
Committee  on  Indian  Affairs  recommended  this  course, 
professing  a  belief  that  the  Indians  had  no  claim  ex- 

23  135    U.    S.    Reports,   p.   641. 

24  Cong.  Doc.  1409,  No.  131,  p.  3. 


The  Cherokee  Indians  89 

cept  that  of  easement.^"  This  was  in  the  early  part 
of  1891.  But  the  settlement  of  the  question  was  to 
be  delayed  a  httle  longer.  Let  it  suffice  for  the  pres- 
ent to  note  the  years  during  which  it  remained  in  dis- 
pute. 

As  was  proposed,  the  Cherokee  "  strip  "  ceded  to  the 
United  States  in  trust  by  the  Treaty  of  1866  was  in- 
cluded in  Kansas  upon  the  admission  of  that  State.^* 
The  "  strip  "  was  a  narrow  strip  stretching  from  the 
Neosho  River  to  the  western  limit  of  Cherokee  terri- 
tory. The  neutral  lands  were  sold  to  an  emigrant 
company ;  supplementary  articles  attached  to  the 
Treaty  of  1866  provided  for  this. 

Two  other  minor  matters  involving  Cherokee  right 
to  land  and  the  imposition  of  the  white  man  upon  the 
Indian  belong  to  this  period.  Railroads  were  being 
constructed  and  there  was  a  disposition  to  confiscate 
much  land  for  their  use.  The  Indians  were  decidedly 
unfriendly  to  such  schemes.  The  decision  of  the  Su- 
preme Court,  already  noted,^^  declared  Congress  had 
no  right  to  grant  privileges  to  railroads  as  holding  the 
fee,  but  only  upon  right  of  eminent  domain.  The 
other  dispute  was  with  the  cattlemen  of  Kansas,  who 
had  formed  the  profitable  habit  of  using  Cherokee  land 
as  a  way  of  transit  for  their  cattle  and,  as  they  pro- 
ceeded slowly,  the  cattle  subsisting  on  the  country,  they 
practically  had  use  of  the  rich  pasturage  without  pay- 
ment therefor.  The  Indians,  awakening  to  the  swindle, 
imposed  a  tax  upon  cattle  thus  passing  through  their 
territories.     At  this  the  Kansans   protested,^*   but  the 

25  Cong.  Doc.  288,   No.  3584. 

26  17  U.  S.  Stat,  at  Large,  p.  98  27  See  page  88. 
28  Cong.  Doc.   1409,  No.  225. 


90  The  Cherokee  Indians 

Indians  were  supported  in  Washin^on.  At  another 
time  (in  1886)  the  cattlemen  attempted  to  bribe  the 
Cherokee  National  Council  for  a  lease  of  their  lands 
for  a  fraction  of  their  value.^^ 

Another  occurrence  illustrates  the  unfortunate  posi- 
tion of  the  Indians.  Congress  imposed  a  tax  on  cer- 
tain manufactured  articles,  but  it  was  held  by  the 
Indian  Commissioner  that  this  did  not  apply  to  articles 
manufactured  and  sold  exclusively  within  Indian  Ter- 
ritory. With  no  notice  of  a  change  of  opinion  the 
Commissioner  ordered  the  arrest  of  Boudinot,  a  Chero- 
kee manufacturer  of  tobacco,  and  ordered  the  seiz- 
ure of  his  factory.  As  the  Secretary  of  the  Interior 
refused  to  refer  to  the  Attorney-general  for  his  opin- 
ion. Congress  was  incHned  to  champion  the  side  of 
the  Indian.^ ^  Eventually  the  case  reached  the  Su- 
preme Court,  however,  and  their  decision  was  against 
Boudinot  on  the  ground  that  an  act  of  Congress 
might  supersede  a  prior  treaty.^  ^  In  this  connection 
there  should  be  mentioned  a  most  important  legislative 
enactment  which  was  revolutionary  in  the  method  of 
deahng  with  the  Indians.  By  an  act  passed  March  3, 
1871,  it  was  enacted  that  no  Indian  nation  or  tribe 
should  be  acknowledged  as  an  independent  nation  with 
whom  the  United  States  might  contract  by  treaty. 
The  proviso  was  added  that  this  should  not  be  con- 
strued to  invalidate  former  treaties.^^  But  in  the  light 
of  the  decision  of  the  Supreme  Court  just  cited 
the  proviso  itself  seemed  invalidated.  Again,  in  the 
"  United  States  versus  Kagama,"  May  10,  1886  ^^  the 

29  Cong.  Doc.  2613,  No.  136.  30  Cong.  Doc.  1433,  No.  79. 
31  11  Wallace,  p.  616.  32  u.  S.  Stat,  at  Large,  16,  p.  566. 
33  118  U.  S.  Reports,  p.  375. 


The  Cherokee  Indians  91 

Court  declared  the  United  States  "has  the  right  and 
authority  instead  of  controlHng  them  [the  Indians]  by 
treaties  to  govern  them  by  acts  of  Congress."  Another 
instance  of  unwarranted  Federal  interference  occurred 
in  1872.  A  Cherokee  murdered  a  Cherokee  woman,  the 
wife  of  a  white  man,  who  was,  nevertheless,  a  Cherokee 
citizen  by  adoption  in  virtue  of  his  marriage  to  a 
Cherokee.  The  murderer  was  arrested  and  was  being 
tried  in  the  Indian  courts  when  friends  of  the  widower 
applied  to  a  United  States  Marshal  for  a  writ.  He 
issued  a  writ,  but  the  Cherokee  sheriff  refused  to  recog- 
nize it.  Thereupon  a  band  of  whites  attempted  to  take 
the  prisoner  by  force  and,  not  succeeding,  shot  him  and 
his  counsel,  killing  the  latter.  Finally  they  were  driven 
off  by  the  Cherokee  sheriff  and  his  assistants,  who  killed 
several  of  the  band.^^ 

For  some  time  after  the  Civil  War  there  was  con- 
siderable doubt  as  to  the  status  of  the  Indians  in  the 
light  of  the  fourteenth  amendment  to  the  Constitution, 
This  was  settled  by  the  Supreme  Court,  which  de- 
cided that  the  Indians  were  not  made  citizens  by  it.^^ 
But  not  so  easy  of  settlement  was  the  practical  problem 
which  the  Cherokees  had  in  common  with  the  States  of 
the  South.  Before  the  war  the  Cherokees  were  slave- 
holders. When  the  slaves  were  freed  the  question  still 
remained  toward  the  attitude  which  the  Indians  would 
assume  as  to  their  former  slaves.  No  doubt  the  prob- 
lem in  the  Cherokee  country  was  in  no  way  the  moment- 
ous question  that  it  was  and  is  in  the  South.  But  there 
was  a  hkeness  in  the  attitude  assumed  by  the  white  men 

34  Cong.  Doc.  1520,  No.  287. 

35  112  U.  S.  Reports,  p.  100,  "  Elk  vs.  Wilkins." 


9^  The  Cherokee  Indians 

and  that  assumed  bj  the  red  men  toward  the  blacks. 
Despite  the  provisions  of  the  Treaty  of  1866  the  In- 
dians did  not  act  toward  their  freedmen  as  the  Fed- 
eral Government  intended.  When  an  appropriation 
of  three  hundred  thousand  dollars  was  made  by  Con- 
gress in  1883  ^^  for  the  Indians  in  payment  for  lands 
sold,  the  Cherokee  authorities  excluded  Cherokee  citizens 
not  of  Cherokee  blood  from  their  share  of  it.^^  This 
angered  both  President  Cleveland  and  Congress.  An 
appropriation  was  then  made  especially  for  those  pre- 
viously excluded,  and  agents  were  appointed  to  learn 
who  were  entitled  to  this  last  sum.  But  the  Cherokees  in 
turn  resented  this  proceeding,  protested  and  threw  all 
possible  obstacles  in  the  way  of  the  agents,  who  found 
no  difficulty  in  learning  of  the  Shawnees  and  Delawares 
who  had  become  adopted  Cherokees,  but  had  a  hard 
time  in  finding  out  to  what  freedmen  amounts  were 
due.38 

In  1891  an  agreement  was  reached  between  the 
Cherokees  and  the  Federal  Government  which  disposed 
of  some  of  the  greater  questions  at  issue.  It  has  al- 
ready been  noted  ^^  that  negotiations  had  been  proceed- 
ing for  some  time  in  regard  to  the  Cherokee  Outlet,  but 
that  they  seemed  hopeless  and  Congress  was  on  the 
verge  of  acting  without  the  consent  of  the  Cherokees. 
It  was  just  at  this  time  that  an  agreement  was  reached, 
and  was  eventually  ratified,  which  settled  this  foremost 
question  and  incidentally  several  others.  The  impor- 
tant parts  of  this  agreement  were  (1)  the  cession  of  the 

36  22   U.  S.   Stat,   at  Large,  p.  624. 

37  Cong.  Doc.  2600,  No.  844. 

38  Cong.  Doc.  2339,  No.  82;  2600,  No.  844. 

39  See  page  88. 


The  Cherokee  Indians  93 

Outlet  ^^  for  eight  hundred  thousand  dollars,  (2)  in- 
truders were  to  be  removed  upon  demand  of  the  Prin- 
cipal Chief,  and  all  not  citizens  or  employed  by  the 
Cherokee  nation  or  citizens  or  by  the  United  States,  and 
all  United  States  citizens  not  residents  under  treaties 
or  acts  of  Congress  were  to  be  deemed  intruders;  (3) 
allowances  for  Cherokees  who  had  made  improvements 
on  ceded  lands;  (4)  the  United  States  was  to  render  an 
account  of  all  moneys  paid  to  the  Cherokees,  and  the 
latter  could  sue  in  the  Court  of  Claims  if  they  con- 
sidered that  their  treatment  was  unjust/^ 

The  Treaty  of  1846  had  foreseen  the  possibility 
that  some  of  the  Cherokees  of  North  Carolina  might 
desired  to  reunite  with  the  nation  west.  From  time  to 
time  detachments  from  these  removed  west.  Provision 
had  been  made^^  for  just  such  a  contingency,  but 
this  money  was  diverted  from  that  purpose  to  the  gen- 
eral objects  of  education  and  improvement.  In  the 
spring  of  1881  sixty-two  Cherokees,  urged  by  Federal 
agents,  left  North  Carolina,  to  rejoin  their  com- 
rades in  Indian  Territory.  They  soon,  however,  be- 
came destitute  and  suffered  greatly  on  the  way,  as  the 
Government  gave  them  no  aid.^^  At  various  other 
times  small  parties  of  North  Carolina  Cherokees  re- 
moved. An  appropriation  was  made  for  the  benefit  of 
these  and  others  in  that  year.^*     And  in  1893  provision 

40  The  Outlet  was  bounded  on  the  west  by  the  100th  meridian; 
north  by  Kansas;  east  by  96th  meridian;  south  by  Creek  Nation, 
Oklahoma,  Cheyenne  and  Arapahoe  reservations,  in  all  over  800,- 
000  acres. 

41  Cong.  Doc.  2900,  No.  56,  27  U.  S.  Stat,  at  Large,  p.  640. 

42  9  U.  S.  Stat,  at  Large,  p.  264. 

43  Cong.    Doc.    2028,    No.    96. 

44  Cong.  Doc.  2303,  No.  208. 


94  The  Cherokee  Indians 

was  made  for  such  as  had  removed  or  might  wish  to 
remove.*^  There  was  subsequent  appropriation  for 
the  same  purpose/^ 

The  affairs  of  these  Cherokees  in  the  East  became 
somewhat  involved.  They  were  unfortunate  in  being 
victimized  by  certain  of  their  agents,  and  comphcated 
law-suits  involving  the  right  to  land  resulted.^^  They 
also  laid  claim  to  a  share  in  all  Cherokee  lands  west 
and  all  funds  and  annuities.  The  Supreme  Court  ruled 
that  if  the  Indians  of  North  Carolina  desired  to  enjoy 
the  common  property  of  the  Cherokee  nation  they  must 
comply  with  the  constitution  and  laws  of  the  Cherokee 
nation  and  be  admitted  as  citizens  thereof;  and  that 
they  were  not  entitled  to  a  share  of  the  annuity  fund 
or  the  fund  created  by  the  sale  of  lands.**  There  was 
also  a  claim  against  the  United  States  because  of  a 
mistake  in  computation  at  the  time  of  the  great  re- 
moval in  1835.*' 

It  will  be  remembered  that  the  Old  Settlers  accepted 
the  Treaty  of  1846  with  a  protest.  Their  first  claim 
against  the  Government  was  the  old  one  which  they  had 
never  dropped,  that  they  were  sole  owners  of  the  coun- 
try. Attention  has  already  been  called  to  the  fact  that 
a  mistake  was  made  in  computing  the  number  remov- 
ing west,  and,  therefore,  a  corresponding  mistake  in 
the  appropriations.  But  this  was  a  minor  considera- 
tion.    The  treaty  fund,  by  subsequent  legislation,  had 

45  27  U.  S.  Stat,  at  Large,  p.  630. 

46  30    U.    S.    Stat,    at    Large,    p.    1247. 

47  Cong.   Doc.    1648,    No.    169. 

48  117  U.  S.  Reports,  p.  288. 

49  A  full  discussion  of  the  claims,  etc.,  of  the  Cherokees  of 
North  Carolina  is  not  possible  because  they  have  not  yet  been 
settled,   but   are    still   pending   before   the   courts. 


The  Cherokee  Indians  95 

been  relieved  of  the  charges  for  one  year's  subsistence, 
at  least  so  far  as  the  Eastern  Cherokees  were  con- 
cerned. Now  the  question  arose:  Was  the  treaty  fund 
thereby  also  relieved  of  like  charges  in  regard  to  the 
Old  Settlers,  or  were  the  costs  of  removal  and  subsist- 
ence proper  charges  against  their  funds  as  stipulated 
in  article  four  of  the  Treaty  of  1846?  ''  The  Old 
Settlers  claimed  that  the  relief  given  to  the  Cherokees 
under  the  legislation  mentioned  inured  to  them  as  well, 
and  that  therefore  the  accounting  officers  of  the  Gov- 
ernment were  in  error  in  charging  it  against  them,  ac- 
cording to  the  rule  of  article  four  of  the  Treaty  of 
1846.^^  This  question,  naturally,  was  referred  to  Con- 
gressional committees,  with  the  result  of  discussions 
which  ended  about  where  they  began,  concerning  the 
meaning  of  the  eighth  and  fifteenth  articles  of  that 
marvelously-wrought  document — ^the  Treaty  of  New 
Echota/"  Eventually  the  matter  was  referred  to  the 
Court  of  Claims,  and  that  Court  assumed  that  judi- 
cially admirable,  but  occasionally  inscrutable  and 
slightly  exasperating  attitude  so  frequently  assumed  by 
courts,  and  declined  to  answer  any  further  than  was  de- 
manded by  the  exigencies  of  the  case  as  presented.  Its 
oracular  decision  was  practically  embodied  in  two  tables. 
The  first  table  showed  the  amount  due  the  Old  Settlers 
if  the  costs  of  removal  and  subsistence  were  not  properly 
chargeable  to  them.  The  second  table  showed  the 
amount  due  the  Old  Settlers  if  the  costs  of  removal  and 
subsistence  ^ere  properly  chargeable  to  them.  But  as 
to  the  absorbing  question  whether  or  not  these  amounts 
were  rightly  chargeable  to  the  Old  Settlers  the  Court 

50  See  page  72.  si  Cong.  Doc.  2329,  No.  2651. 

52  See  pages  38  et  seq. 


96  The  Cherokee  Indians 

looked    wise   as    the    Sphinx   but    declined   to    commit 
itself.'" 

The  final  settlement  was  made  by  the  Supreme  Court 
upon  appeal  from  the  Court  of  Claims,  in  1892.^*  The 
petition  of  the  Old  Settlers,  as  stated  by  the  Supreme 
Court,  was  (1)  that  they  be  not  held  by  the  Treaty  of 
1846,  as  it  was  made  under  duress  and  that  they  be 
awarded  the  value  of  their  lands  which  they  claimed  as 
sole  owners.      (2)    If  this  be  denied,  they  prayed  for: 


,756.94    under  Article  four,  Treaty  of  1846, 
9,179. 16|  under  provisions  of  Treaty  of  1828, 
30,000.00     for  property  destroyed,  etc. 


$369,936.10^ 


The  Supreme  Court  decided  in  regard  to  (1)  that  the 
Treaty  of  1846  put  to  rest  the  contention  as  to  owner- 
ship of  land.  In  regard  to  (2)  the  Court  entered  into 
a  thorough  discussion  of  the  claims  of  the  Indians  and 
a  complete  review  of  the  various  awards  of  the  Court 
of  Claims. 

The  petitioners  claimed  that  no  deduction  should 
have  been  made  for  subsistence,  and  that  the  sum 
allowed  for  removal  should  be  limited  to  2,200  Indians 
at  $20  per  head;  they  insisted  on  the  $30,000  for 
property  destroyed,  while  they  abandoned  their  claim 
for  $9,179.1 6i  as  the  value  of  the  Arkansas  agency, 
land,  and  improvements,  and  conceded  that  the  sum  of 
$4,179.26,  therefor,  as  found  by  the  court  below, 
might  be  accepted  as  correct.  The  Court  of  Claims 
disallowed  the  item  of  $30,000  and  charged  for  the  re- 
moval of  16,957  Cherokees  at  $20  each,  and  an  item 
53  Cong.  Doc.  2456,  No.   1680.      54  149  U.  S.  Reports,  p.  427. 


The  Cherokee  Indians  97 

for  the  expenses  of  the  Cherokee  committee  of  $2,- 
212.76. 

The  Supreme  Court  concurred  in  the  rejection  of  the 
$30,000  (a  claim  which  had  its  origin  in  the  alleged 
compulsion  of  certain  Western  Cherokees  to  leave  their 
homes  and  seek  refuge  in  the  States). 

Article  eight  of  the  Treaty  of  1846  placed  the 
amount  at  $20  each  for  removal  and  $33.33  for  sub- 
sistence. The  Court  of  Claims  rightly  decided  the 
number  to  be  2,200 — the  number  obtained  with  all  pos- 
sible accuracy — plus  14,737  East  Cherokees  at  $20 
each.  The  Senate  decided  that  the  United  States  ought 
to  bear  the  charge  of  subsistence,  and  voted  $189,- 
422.76,  being  the  difference  between  the  amount  allowed 
June  12,  1838,  and  that  actually  expended,  and  this 
excess  was  improperly  charged  to  the  treaty  fund. 
Therefore  the  Court  of  Claims  correctly  deducted 
$339,140  for  the  removal  of  the  whole  number  of 
Cherokees  at  $20  each,  and  dechned  to  deduct  any 
charge  for  subsistence. 

The  Court  of  Claims  properly  rejected  the  $18,- 
062.06  (national  debt),  and  the  $61,073.49  (claims  of 
United  States  citizens),  but  held  the  $22,212.76  (for 
committee  to  carry  treaty  into  effect)  to  be  properly 
chargeable  under  article  twelve.  Treaty  of  1835.  But 
the  Supreme  Court  was  persuaded  that  this  was  not  cor- 
rect. Article  ten  of  the  Treaty  of  1835  said  that  the 
United  States  was  to  pay  the  just  debts  of  the  Chero- 
kee nation  held  by  citizens  of  the  same,  and  also  just 
claims  of  United  States  citizens  for  services  rendered, 
and  fixed  $60,000  as  the  amount  for  those  purposes. 
The  debts  and  claims  of  article  fifteen  of  the  Treaty 


98  The  Cherokee  Indians 

of  1835  to  be  deducted  under  article  four,  Treaty  of 
1846,  should  be  confined,  the  Supreme  Court  believed, 
to  the  $60,000,  and  that  was  justly  chargeable 
against  the  fund,  but  the  Court  was  not  satisfied  that 
the  $22,212.76  should  be  charged  in  addition. 

The  total  amount  due  the  Old  Settlers,  according  to 
this  decision,  was  $212,376.94  with  interest  from  June 
12,  1838. 

STATEMENT: 

Treaty    fund    $5,600,000.00 

Less — 
For  800  A.  of  land $    500,000.00 

"    General    fund     500,000.00 

"    Improvements      1,540,572.27 

"    Ferries      159,572.12 

"    Spoliations     264,894.09 

"    Debts,  etc 60,000.00 

"    Removal    16,957    Cherokees    at 

$20    each    339,140.00  3,364,178.48 

Residum  to   be  divided $2,235,821 .  52 

One-third    due   Western    Cherokees $    745,273.84 

Less  payment  of  Sept.  ^Q,  1851 532,896 .  90 

Balance     $    212,376.94 

And  recovery  should  also  include  $4,179.26  for  Arkan- 
sas agency,  but  no  interest  should  be  allowed  on  this. 
In  1894  an  appropriation  was  made  for  the  Old  Set- 
tlers in  accordance  with  the  judgment  rendered,^*^  and 
this  matter  was  settled  at  last.*^^ 

55  28  U.  S.  Stat,  at  Large,  p.  451. 

58  This  case  illustrates  the  complicated  condition  of  Indian 
affairs  arising  from  treaties  of  the  Federal  Go-ernment's  own 
making. 


CHAPTER    VIII 

THE    END     OF     THE     CHAPTER 

WITH  the  growth  of  the  country  and  the  distribu- 
tion of  population  by  which  the  West  lost  its 
character  as  a  sparsely  settled  wilderness,  the  relation 
of  the  Indian  tribes  to  the  United  States  necessarily 
changed.  White  men  were  everywhere  and,  as  ever, 
looking  with  hungry  eyes  at  the  Indians'  possessions. 
The  change  of  the  Congressional  attitude  is  shown  by 
the  various  legislative  enactments  and  debates  of  the 
period  subsequent  to  the  Civil  War.  As  the  years  went 
by,  it  became  increasingly  evident  that  some  definite 
Indian  policy  must  be  decided  upon  and  consistently 
pursued.  The  trend  of  the  Governmental  mind  had  long 
been  toward  greater  Federal  control  of  Indian  affairs. 
In  1887  a  law  had  been  passed  extending  the  jurisdic- 
tion of  United  States  courts  over  the  Indians,  but  the 
Cherokees,  among  others,  had  been  expressly  excepted 
from  its  provisions.^  But  it  was  clear  that  they  could 
not  escape.  In  1892  a  committee  in  the  Senate  re- 
ported :  "  The  anomalous  condition  of  five  separate,  in- 
dependent Indian  governments  within  the  government 
of  the  United  States  must  soon,  in  the  nature  of  things, 
ceaseo"  and  announced,  "  the  purpose  of  the  Govern- 
ment now  is  to  make  them  (i.  e.,  the  Indians)  citizens."  ^ 

1  94  U.  S.  Stat,  at  Large,  p.  391. 

2  Cong.  Doc.  2915,  No.  1079,  p.  7. 


100  The  Cherokee  Indians 

In  his  annual  message,^  December  7,  1896,  President 
Cleveland  said  it  is  "  almost  indispensable  that  there 
should  be  an  entire  change  in  the  relations  of  these 
Indians  (i.  e.,  the  Five  Civilized  Tribes)  to  the  Gen- 
eral Government."  Several  years  previous  (March, 
1893),  a  commission  had  been  appointed  to  negotiate 
with  these  Indians  and  obtain  the  extinguishing  of  their 
title  to  tribal  lands,  the  allotment  of  lands  in  severalty 
and  the  abolition  of  their  courts/  This  formed  the 
nucleus  of  the  commission  known  so  widely  as  the 
Dawes  Commission,  which  undertook  to  settle  finally 
the  relations  which  the  Indian  nations  w^ere  to  bear 
toward  the  Federal  Government. 

The  following  years  were  years  prolific  of  important 
measures  relating  to  the  Indians.  One  of  the  laws 
passed  was  an  act  giving  United  States  courts  in  Indian 
Territory  exclusive  civil  and  criminal  jurisdiction,  and 
also  enacting  that  all  acts  of  any  of  the  councils  of  the 
Five  Civilized  Tribes  must  be  submitted  to  the  Presi- 
dent of  the  United  States,  and  they  were  to  be  of  no  ef- 
fect if  disapproved  by  him,  or,  if  not  disapproved,  they 
were  to  be  ineffective  until  the  expiration  of  thirty  days. 
These  provisions  were  to  be  enforced  on  and  after  Jan- 
uary 1,  1898.^  The  year  of  1898  was  the  year  of  the 
famous  Curtis  Act.®  By  it  the  jurisdiction  of  United 
States  courts  was  to  be  enlarged  and  extended  so  as 
to  include  all  causes  of  action,  irrespective  of  the  parties 

3  "  Messages  and  Papers  of  the  Presidents,"  Richardson,  vol.  9, 
p.  735. 

4  27  U.  S.  Stat,  at  Large,  p.  645. 

5  30  U.  S.  Stat,  at  Large,  p.  83. 

6  30  U.  S.  Stat,  at  Large,  p.  475. 


The  Cherokee  Indians  101 

involved,  and  so  as  to  give  those  courts  jurisdiction  to 
try  certain  suits  by  or  against  the  several  tribes.  It 
made  the  enrollment  of  the  Dawes  Commission  as  to 
citizenship  in  the  nations  final.  It  provided  for  the 
allotment  of  lands  in  severalty  by  the  Dawes  Commis- 
sion so  far  as  the  use  and  occupancy  of  land  were  con- 
cerned, reserving  to  the  tribes  all  minerals  and  the 
leasing  by  the  Secretary  of  the  Interior  of  mineral  lands 
under  regulations  to  be  prescribed  by  him.  It  provided 
for  the  surveying  and  laying  out  of  town  sites ;  for  the 
payment  of  rents  and  royalties  due  the  tribes  into  the 
United  States  treasury  to  the  credit  of  the  tribes,  but 
prohibiting  the  collection  of  the  same  by  any  individ- 
ual of  the  tribe,  permitting,  however,  the  leasing  by 
individuals  of  their  allotments  excepting  as  to  minerals. 
Prohibiting  the  payment  of  any  moneys  to  the  tribal 
governments,  it  provided  that  the  United  States  disburs- 
ing agents  were  to  pay  all  sums  to  the  members  of  the 
tribes.  It  provided  for  the  termination  of  leases  of 
lands  for  grazing  purposes  by  January  1,  1900.  One 
hundred  and  fifty-seven  thousand  acres  in  the  Chero- 
kee nation  were  to  be  set  apart  for  the  Delawares,  sub- 
ject to  adjudication  by  the  Court  of  Claims  and  the 
Supreme  Court  of  the  rights  of  the  Delawares.  The 
enforcement  of  the  laws  of  the  various  tribes  by  the 
United  States  courts  in  Indian  Territory  was  pro- 
hibited, and  all  tribal  courts  in  the  territory  were  to  be 
abolished. 

The  Indian  Appropriation  Act  of  March  3,  1901,^ 
provided,  "  no  act  of  the  Creek  or  Cherokee  tribes  shall 
be  of  any  validity  until  approved  by  the  President  of 
the  United  States." 

7  31  U.  S.  Stat,  at  Large,  p.  1077. 


102  The  Cherokee  Indians 

From  the  first  the  Cherokees  had  looked  with  great 
suspicion  on  the  Dawes  Commission  and  had  been  ex- 
ceedingly reluctant  to  surrender  any  of  their  privileges. 
The  surrounding  Indian  nations  showed  little  disinclin- 
ation to  enter  upon  negotiations  and  the  Cherokees  saw 
that  they  were  standing  alone.  Furthermore,  such  acts 
as  the  Curtis  Act  were  coercive,^  and  the  Cherokees 
realized  that  they  could  choose  between  making  an 
agreement  and  having  distasteful  laws  placed  over  them 
without  so  much  as  consultation  with  them.  In  the 
winter  of  1897  they  had,  to  be  sure,  written  to  Wash- 
ington to  correct  the  impression  that  they  were  unwill- 
ing to  negotiate  with  the  Dawes  Commission,®  but  in  the 
following  April  they  protested  against  the  bill  abolish- 
ing Cherokee  courts,  denying  the  allegation  ^°  that  they 
were  corrupt,  and  asserting  that  the  bill  was  in  direct 
conflict  with  the  Treaty  of  1866.  They  said  the  peo- 
ple were  greatly  concerned  and  were  debating  whether 
or  not  to  make  further  agreements  with  a  government 
that  had  failed  to  keep  past  ones.^^ 

Circumstances  practically  compelled  them  to  enter 
into  negotiations.  Agreements  were  made  in  1899  and 
in  1900,  but  were  not  ratified  by  Congress,  and  so  were 
superseded  by  an  agreement  more  satisfactory  to  Con- 
gress in  1902.^^  This  agreement  which  originated  with 
Congress  was  ratified  by  the  Cherokee  people,  August 
7,  1902. 

8  The  purpose  of  the  Curtis  Act  was  to  do  by  law  what  could 
not  be  done  by  agreement. 

9  Cong.    Doc.    3470,    No.    112. 

10  The  Indian  Peace  Commission  considered  territorial  or  state 
government  very  desirable  for  them. 

11  Cong.  Doc.  3559,  No.  24. 

12  Dept.  of  Interior  Reports  for  1902,  Part  2,  p.  31. 


The  Cherokee  Indians  103 

Lands  were  to  be  appraised  at  their  true  value  by  the 
Dawes  Commission.  Allotments  were  to  be  made  of  one 
hundred  and  ten  acres  to  every  Cherokee  citizen,  forty 
of  the  one  hundred  and  ten  as  a  homestead  inalienable 
during  the  life  of  the  allottee,  not  exceeding  twenty- 
one  years,  and  non-taxable.  All  other  allotted  lands 
were  to  be  alienable  in  five  years.  Lands  were  to  be  re- 
served for  town-sites,  railroads,  cemeteries,  schools, 
asylums,  and  certain  public  buildings. 

No  white  intermarried  with  a  Cherokee  since  Decem- 
ber, 1895,  should  be  entitled  to  enrollment,  or  should 
participate  in  the  distribution  of  tribal  funds. 

The  Cherokee  school  fund  was  to  be  used  under  the 
direction  of  the  Secretary  of  the  Interior  for  the  edu- 
cation of  Cherokee  children.  All  moneys  for  the  carry- 
ing on  of  schools  should  be  appropriated  by  the 
Cherokee  National  Council,  but  if  it  failed  to  make  an 
appropriation,  the  Secretary  of  the  Interior  could 
direct  the  use  of  funds  necessary.  The  orphan  fund 
should  be  used  under  the  direction  of  the  Secretary  of 
the  Interior. 

Town  sites  were  provided  for.  Any  Cherokee  possess- 
ing a  lot  with  improvements,  at  the  time  of  its  segrega- 
tion as  part  of  a  town  site,  should  have  the  right  to  buy 
it  according  to  the  provisions  of  the  Curtis  Act,  or,  if 
he  elected,  the  lot  should  be  sold,  but  he  should  be  com- 
pensated for  his  improvements.  The  owner  of  town- 
site  lots  with  occupancy  gained  under  the  town-site 
acts  of  the  Cherokees,  could  buy,  if  he  had  improve- 
ments, at  one- fourth  the  appraised  value;  if  no 
improvements,  at  one-half  the  appraised  value;  if  a 
rightful  possessor,   but  not   under   Cherokee  town-site 


104  The  Cherokee  Indians 

law,  he  could  purchase  for  one-third,  but  full  value 
must  be  paid  if  the  town  should  be  under  two  hundred 
in  population,  or  one  that  was  to  be  laid  out.  Other 
lots  should  be  sold  at  auction,  the  United  States  to  pay 
all  expenses  incidental  to  platting,  surveying,  and  dis- 
position of  town  lots.  The  United  States  might  pur- 
chase lots  for  jails,  court  houses,  or  for  other  public 
purposes. 

The  tribal  government  of  the  Cherokee  nation  was 
not  to  continue  after  March  4,  1906. 

The  collection  of  all  revenue  belonging  to  the  tribe 
was  to  be  done  by  an  officer  appointed  by  the  Secretary 
of  the  Interior.  All  funds  of  the  tribe  were  to  be  paid 
out  under  the  direction  of  the  Secretary  of  the  In- 
terior. Per  capita  payments  were  to  be  made  by  a 
United  States  officer  directl3^  This  also  was  to  be  under 
the  Secretary  of  the  Interior's  direction. 

Jurisdiction  was  given  to  the  Court  of  Claims,  with 
right  of  appeal  to  the  Supreme  Court,  in  any  claim  of 
the  Cherokee  tribe  or  band  thereof  against  the  United 
States  arising  under  treaty  stipulations  upon  which 
suit  should  be  instituted  within  two  years,  and  also  in 
any  claim  of  the  United  States  against  the  Cher- 
okees. 

Cherokee  citizens  might  rent  allotments  for  a  term 
not  exceeding  one  year  for  grazing  purposes,  and  for  a 
term  not  exceeding  five  years  for  agriculture.  Leases 
for  longer  periods  and  leases  for  mineral  purposes  might 
be  made  with  the  approval  of  the  Secretary  of  the 
Interior. 

The  Curtis  Act  was  not  to  apply,  except  sections  14 


The  Cherokee  Indians  105 

and  ^7,^^  to  lands  or  other  property  of  the  Cherokees, 
and  no  other  act  or  treaty  provision  inconsistent  with 
the  agreement  was  to  apply. 

In  the  appraisments  made  according  to  this  agree- 
ment consideration  w^as  not  to  be  given  to  the  location 
of  a  lot  nor  "  to  any  timber  thereon  or  to  any  mineral 
deposits  contained  therein."  The  allotments  were  to  be 
of  average  land,  i.  e.,  land  equal  in  value  to  one  hundred 
and  ten  acres  of  average  allottable  land.  The  Dawes 
Commission  was  also  engaged  in  enrolling  Cherokee  citi- 
zens— a  difficult  task  rendered  more  difficult  before  the 
agreement  by  the  opposition  of  the  Cherokee  full- 
bloods. 

In  1902  an  appropriation  was  made  for  the  removal 
of  intruders  on  Indian  land  with  the  proviso  that  lawful 
possessors  of  town-sites  should  not  be  removed.^^  This 
appropriation  act  was  passed  only  after  a  chapter  of 
wrongs  had  been  enacted.  The  agreement  of  1891  pro- 
vided for  the  removal  of  intruders  upon  demand  of  the 
Principal  Chief.  In  1886  the  Cherokee  agent  warned 
intruders  of  their  risk  in  settling  upon  Indian  land. 
Some  had  made  improvements ;  some  had  been  received 
or  desired  to  be  received  into  Cherokee  citizenship.^^  It 
was  finally  decided  that  the  Cherokee  nation  should 
determine  the  status  of  these  intruders.  In  1888,  Sep- 
tember, the  intruders  were  given  six  months  to  remove, 
but  the  Cherokees  would  not  buy  their  improvements, 

13  Section  14  provided  that  towns  of  over  two  hundred  might 
be  incorporated. 

Section  27  authorized  the  Secretary  of  the  Interior  to  appoint 
one  Indian  inspector. 

14  32  U.  S.  Stat,  at  Large,  Part  1,  p.  259. 

15  Cong.  Doc.  2915,  No.  1079,  and  Report  of  Ind.  Comm.  for 
1896,  p.  176. 


106  The  Cherokee  Indians 

as  they  hoped  to  get  them  for  nothing  at  the  expiration 
of  the  six  months.  Therefore,  for  the  intruders'  sakes 
the  time  for  removal  was  extended  indefinitely.  In  1896 
the  agent  reported  that  in  the  eight  years  in  which  he 
had  been  in  office  he  had  not  been  informed  of  one  in- 
truder who  had  sold  his  improvements  or  removed  from 
the  nation. 

Upon  the  announcement  of  the  agreement  made  with 
the  Dawes  Commission,  it  was  said  by  the  Indian  Com- 
missioner that  there  was  no  need  of  any  further  agree- 
ments with  any  of  the  five  nations. ^^ 

So,  at  last  the  great  question  is  settled.  Soon  the 
Cherokee  nation  will  be  no  more.-*^^  The  years  of 
struggle  and  strife  are  over,  and  the  Cherokee  must 
seek  his  destiny  as  a  member  of  the  great  nation  that 
has  virtually  swallowed  the  red  man.  He  will  start  with 
an  advantage.  He  will  be  the  o\^Tier  of  his  lot  of  land 
and  will  be  guarded  in  the  possession  of  it  for  some 
years  to  come.  But  a  little  lot  of  ground!  That  is 
the  apportionment  of  the  Cherokee  who  when  our  father 
reached  American  shores  was,  in  common  with  his  red 
brethren,  in  possession  of  that  magnificent  eastern  land 
equal  in  extent  to  several  States  and  unsurpassed  in 
beauty  and  in  value. 

The  chapter  is  almost  concluded.  Congress  has 
passed  a  bill  looking  toward  the  creation  of  the  State 
of  Oklahoma,  which  is  to  consist  of  the  territory  of  that 
name  joined  to  Indian  Territory.  A  constitution  has 
been  adopted  by  the  quasi-State  and  if  it  meets  with  the 

16  Sec.  of  Interior  Report,  1902,  Ind.  AfF.,  Part  I,  p.  122. 

17  The  time   for  the   dissolution   of  the  tribal   government   has 
been  postopend  indefinitely.     34  U.  S.  Stat,   at  Large,  p.   137. 


The  Cherokee  Indians  10*7 

approval  of  the  Government  we  shall  soon  add  another 
star  to  the  flag.  When  the  Cherokees  become  citizens 
of  the  State  of  Oklahoma  the  conclusion  will  have  been 
reached.  A  new  chapter — a  new  book  will  begin  in 
Cherokee  history.  May  it  be  that  the  white  man  shall 
then  speak  "  Peace !  "  to  the  Cherokee. 


CHAPTER    IX 

CONCLUDING    OBSERVATIONS 

WITHOUT  attempting  to  deduce  principles  from 
the  preceding  chapters,  a  few  remarks  may  be 
made  in  concluding. 

It  is  evident  that  the  wrongs  done  the  Indians  have 
been  quite  as  much  the  result  of  knowing  injustice  as 
of  blunders.  In  his  controversy  with  Schermerhorn  ^ 
Major  Davis  said  that  if  the^  correspondence  with 
Schermerhorn  ever  reaches  light,  r  any  American  citizen 
who  reads  it  will  blush  for  his  oajimtrv."  Surely  any 
American  citizen  who  reads  a  chapter  in  the  story  of 
Indian  wrongs  should  blush  for  his  country.  The  truth 
is  that  whether  it  is  the  case  of  Georgia's  oppression  or 
the  case  of  intruders  unremoved  because  of  politics,  the 
white  man  has  coveted  the  Indians'  possessions  and  has 
taken  them.  The  history  of  the  Government's  rela- 
tions with  the  Indians  has  been  one  of  treaties  violated, 
of  promises  broken,  and  of  partisan  prejudice  where 
there  should  have  been  judicial  fairness.  One  of  the 
black  pages  in  American  history  is  the  one  that  relates 
the  connivance  of  the  President  of  the  United  States 
with  a  State  Gof^ment  to  disregard  the  decision  of 
the  Supreme  Court\and  perpetrate  a  gross  injustice 
upon  the  Indians. 

The  sponsor  of  aj(  Indian  bill  a  few  years  ago  ^  ad- 

1  See  page  35. 

2  A  bill  for  the  fon^ation  of  the  territory  of  Oklahoma.    Cong. 
Doc.  1409,  No.  131,  t/s. 


The  Cherokee  Indians  109 

mitted  that  it  was  "  found  impossible  to  make  a  bill  ac- 
cording in  every  respect  with  all  treaties."  This  was 
no  doubt  true,  but  it  reminds  us  of  two  facts:  (1) 
The  Government  made  treaties  inconsistent  with  each 
other,  with  various  Indian  tribes;  (2)  the  Government's 
Indian  policy  was  too  often  based  upon  expediency, 
not  principle.  "  Anything  and  everything  to  ac- 
complish the  immediate  end  "  seemed  the  motto.  Hence 
promises  were  readily  given  which  anyone  with  ordinary 
foresight  could  see  it  would  probably  be  impossible  to 
keep. 

Since  the  Civil  War  politics  has  not  been  as  potent 
a  factor  in  determining  Indian  appointments,  but  dur- 
ing the  past  year  the  papers  and  magazines  have  told 
of  the  defrauding  of  Indians  in  the  Far  West  of  their 
lands. 

The  logic  of  events  and  the  progress  of  civilization 
have  doubtless  demanded  that  this  country,  which  at 
first  treated  the  Indians  as  independent  nations  with 
whom  treaties  might  be  made,  should  now  treat  them  as 
wards  and  expect  soon  to  render  them  citizens.  But 
what  crimes  have  been  committed  in  the  name  of  civiliza- 
tion! When  it  is  realized  that  the  dominance  of  the 
highly  civilized  nations  means  primarily  responsibility, 
and  that  the  ends  of  true  civilization  are  never  pro- 
moted, but  are  retarded  by  lying  and  stealing,  even 
though  these  crimes  may  be  the  means  of  a  speedy  in- 
crease of  power  in  the  hands  of  the  superior  race — 
when  it  is  realized  that  truth  and  justice  are  the  mar- 
row of  civilization,  and,  therefore,  cannot  be  sacrificed 
even  temporarily,  then  the  superior  peoples  and  the  in- 
ferior races  and  civilization  itself  will  be  the  gainers. 


APPENDIX 

IT  will  be  recalled  that  there  was  embodied  in  the  agree- 
ment according  to  the  terms  of  which  the  Cherokee 
Outlet  was  sold  to  the  United  States,  a  clause  which 
provided  that  an  account  of  the  financial  dealings  of 
the  Federal  Government  with  the  Cherokees  was  to  be 
rendered  to  the  latter.  Upon  the  rendering  of  such  an 
account — if  in  their  opinion  they  had  been  treated  un- 
justly— the  Cherokees  were  given  the  right  of  appeal 
to  the  Court  of  Claims,  providing  action  were  begun 
before  the  expiration  of  a  year.  In  accordance  with 
this  clause  Messrs.  Slade  and  Bender,  expert  account- 
ants, were  appointed  to  examine  all  accounts.  After 
a  thorough  examination  they  rendered  a  report  of  their 
conclusions.  This  report  allowed  several  claims  of 
trifling  amounts  and  disallowed  several;  but  found  a 
balance  of  $1,111,284.70  due  for  the  cost  of  removal 
in  the  migration  just  subsequent  to  the  Treaty  of  New 
Echota,  and  allowed  interest  on  this  sum  from  June  12, 
1838.  This  account  was  sent  by  the  Secretary  of  the 
Interior  to  the  Cherokee  nation  and  accepted  by  it  and 
a  copy  was  also  sent  by  him  to  Congress,  together  with 
information  of  its  acceptance  by  the  Cherokees,  but 
no  appropriation  was  made.  This  was  in  1895.  It 
was  not,  however,  until  1902  that  Congress  passed  a 
statute  giving  the  Court  of  Claims  authority  to  pass 
upon  the  report  of  the  accountants,  and  on  March  20, 
1905,  a  decision  was  reached  by  the  Court. 


lis  Appendix 

Owing  to  the  fact  that  the  report  of  the  accountants 
had  taken  the  form  of  an  award,  it  was  considered  by 
many  to  have  such  validity.  The  Court  found,  how- 
ever, that  it  was  an  account  simply  and  had  none  of 
the  elements  of  an  award  or  an  account  stated.  Never- 
theless, the  scope  of  the  accounting  was  as  broad  as 
that  part  of  the  agreement  allowing  suit  to  be  brought 
by  the  Indians  for  any  alleged  "  amount  of  money 
promised  but  withheld  by  the  United  States  from  the 
Cherokee  Nation  under  any  of  said  treaties  or  laws," 
improperly  adjusted  in  the  accounting.  Therefore  all 
their  claims  were  to  be  reopened  de  novo,  and  this  meant 
that  the  court  or  the  accountants  were  to  go  behind 
treaty  and  statutory  laws,  receipts  in  full  and  settle- 
ments ;  for  otherwise  the  case  had  already  been  decided 
against  the  Indians.  It  had  been  adjudged^  according 
to  the  letter  of  the  law  that  the  cost  of  removal  must 
be  borne  by  the  Cherokees.  The  Cherokees  always 
claimed  that  this  should  not  have  been  charged  to  them. 
And  as  part  of  the  price  for  the  Outlet  they  demanded 
that  all  such  matters  (including  this)  should  be  re- 
opened. Thus  the  court  decided  that  the  action  before 
it  was  one  to  recover  purchase  money  on  a  contract 
of  sale.  The  accounting  was  the  means  to  an  immediate 
payment  to  which  the  Indians  were  entitled.  Inasmuch 
as  the  Secretary  of  the  Interior,  acting  officially,  sent 
the  account  to  the  Cherokees,  and,  inasmuch  as  upon 
their  acceptance  of  it,  no  other  was  rendered  and  Con- 
gress did  not  act  and  the  twelve  months  in  which  suit 
might  be  brought  elapsed,  the  Court  considered  the  ac- 
counting as  final. 

The  Court  also  found  that,  since  the  ownership  of 
1  27  Court  of  Claims,  1,  p.  44. 


Appendix  113 

land  was  communal,  the  $1,111,284.70  should  be  dis- 
tributed per  capita  to  all  Cherokees,  whether  east  or 
west  of  the  Mississippi,  believing  all  to  be  on  the  same 
footing  in  regard  to  such  a  fund. 

STATEMENT: 

Value    of    these    tracts    of    land,    1700    A.    at    $1.25 

per    A $       2,125.00 

Amt.  paid  for  removal  of  Eastern  Cherokees 1,111,284.70 

Amt.    received    by    receiver    of    public    monej'^s    at 

Independence,    Kans 432.28 

Interest  on  $15,000  of  Choctaw  funds,  applied  in  1863 

to    relief    of   indigent   Cherokees 20,406.25 

The  first  item  with  interest  from  Feb.  27,  1819,  the 

Court  ordered  to  be  credited  to  the  school  fund ;  the 

second  with  interest  from  July  12,  1838,  divided  per 

capita;  the  third  with  interest  from  Jan.  1,  1874,  to  be 

paid  to  the  treasurer  of  the  Cherokee  nation ;  the  fourth 

with  interest  from  July  1,  1893,  to  be  placed  in  the 

Cherokee  national  fund.^ 

2  This  decision  with  a  slight  modification  for  the  sake  of  clear- 
ness has  since  been  affirmed  by  the  Supreme  Court. 


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!  if  iitt 


